DISTRICT COURT.

Mount Ida Chronicle, Volume V, Issue 285, 21 August 1874, Page 1 (Supplement)

DISTRICT COURT.

Thttbsday, August 18th. (Before his Honor Judge Wiiaon Grey.) (Continued from last toeek.J Mr. Kowlatt: In opening the case for the defence I may state that this case has cropped up often. This is the largest amount of damages as yet asked. So far the defendants have preferred to bear the petty penalties aßked for and Jgranted rather than go to further expense; but now they are obliged to apply for the adjustment of their rights. The decision which, it is said, ought to have been sufficient was not considered by them as such for two reasons, first—there was very little investigation, and the sum in question was small. No provision could be made to stop this interference—if it be an interference. They must have abandoned Clarks altogether to free themselves from molestation. Since the former decision two years intervened without any molestation. Since that time about three suits a year have been the average. I shall prove in evidence that two parties and one Bingle individual hold rights to discharge tailings into the creek. Of course these rights are subsequent in date to the water rights of plaintiffs. The defendants also hold rights to divert water from the Waitaki and Mount Ida water sheds, and to terminate such races so that the water can escape in no other manner but into the creek and over the falls. If parlies hold licenses to divert water from one shed to another, with a right to discharge, they have a right to avail themselves of the natural outlet. He would urge that the defendants would be protected by virtue of their water right, so long as they used reasonable diligence to prevent damage to others. This case is brought under the section for interference, which apparently allows such interference by consent of the Warden, which 1 hold we have. Plaintiffs claim under two certificates, dated at different dates—one, no doubt, beyond interference; but the second one is different, and liable to attack, as being for an entirely distinct race. - Only one raee has been cut —that point is in evidence. I argue that we are exempt from furnishing them this second four heads they speak of, as their title is incomplete. In the Warden's Court the defendants were somewhat taken by surprise, having to conduct their own case. The Warden called assessors on his own account, and awarded them two day's fees against their will.

Richard Lawer, miner, working at Mount Burster : I was at the head race of complainants on the 10th of August and 23rd of December. There, -was about half a Government head in the creek at that time, I consider. There was about one and a half heads coming down the side race .at that period. Thi* side race is about three-quarters of a mile long, and is capable of carrying four to five heads, in some places the fall is more than the ordinary tail races; in other places a quarter of an inch in twelve—the regular fall. I have known the creek about three years. Mr. 'Kowlatt i Can you give an opinion as to the amount of water that would gather between the head of the side race and the head of complainant's race. Mr. Mouat objected, it being merely a matter of opinion, and not of observation.

Mr. Rowlatt: Founded on observation, though. - His Honor : It is from his experience . of three years. Witness: In dry times about half a head—from half a head to ahead. 'All the drainage from the tail race comes intoff that branch. lam -including that in my estimate. This drainage of the tail in dry weather might make half the water that gathers—a quarter of an head. The side race picks up three small streams. There are no other than these ihree, besides the main creek. In March last I was at the head race. Everything was flowing with water from a flood. At that time there was more coming in the side race than the race could take. I went down the race two miles to their (plaintiffs') framing. The race was overflowing all the way. It was full, but not overflowing between the Falls and second creek. Between the second creek and the fluming, 1 ! marked fourteen different places where it was flowing over. The fluming was seventeen inches by thirteen. At the first two boxes the fluming was quite full, and running very steadily. I was down again on the 24th Mar eh» "Was at the head of the. race on.

that day. The waterjrarnoT all going in the race at that-dayT I considered that, about the half of what was in the creek, one head or less, was going into the creek, and- about one and a half to two heads coining down the side race. There was a little tailings at the head. About half an hour's work would turn in all the water that was there. I work with Thomas' party. We did no work between the 7th of March and the following days. We did no work between the 10th of December and Christmas. After the three days, the dams had not enough water to feed the races. Three dams full since the 7th, Bth, and 9th of Marah was all we did up to the end of May—about five to six months for seven dams in all. While working these seven dams of water, we would be using a stream of water about three heads. While we were working, we always sent .a man down to the defendants' race to race clear, and give them all'the water he could to keep up,their supply. c By the Court: t have an interest in. Thomas' party. By Mr. Rowlatt: About fifty or sixty yards the tailings might extend, the sediment going about 300 yards perhaps. I never cleaned out any that-far. .When the* race has been fullest T and another have cleared it in two hours, and could get the water on in loss than half an hour. I think we could keep the race clear by lifting the trap door when our dams are on, and give them a full supply while the tailings are dropped. Thomas' party take their water from the back of Mount Ida —the Waitaki watershed. Their race terminates at the left-hand branch of the Little Kyeburn, looking up the creek. Thomas' party hold tail races also discharging into the same branch. Cross-examined : I have been connected with this claim about three years. I have not had much to do with measuring 'and guaging water. I went down on the 10th December to see the race ; it was clear. Between the 10th and the 23rd I was down twice. We go to see whether the. race is blocked with tailings. Gogarty might have been sluicing—we were not. I have no interest in Gogarty's claim. Gogarty asked me to go down. lam quite sure I was down twice. I went down on all parties'account, The quantity of water I take at a rough estimate. The claims at Clarks hare been much; worked. The tailings have been discharged down the Waitaki side. JSTone since December have gone down the Waitaki watershed, and races bringing in eight heads each came in from the back of Mount Ida. All thai*-water comes into the left-hand branch. Thomas and party and Gogarty use it. Sixteen heads is tine registered right. I have seen more and less coming in. Since December last verylittle came in. The ne'es were all full on the 7th, Bth, and 9th of March, when there was a flush on the hill. '1 hat was the only occasion when there was any to speak of. We have*no source of supply other, but a leasing right from the Kyeburn belonging to Gogarty and Greer. Except on the 7th, Bth, and 9lh, we hud no regular supply other than the dams. We don't catch inueh water on the hill, from the rain, having to depend more on i the snow melting. "I was clown about two hours on the occasions I speak of in December. I cleaned out. the race. I went down the race about 200 or 300' yards. I turned in all the water that there was. There is a good heap of tailings between our working* and the head of the raee. It can't be \e>ry deep, as I still see a lot of big boulders in the creek. I don't think I stated before the Warden that we (Thomas and party) used about; a dam a week. We left the place altogether on the 23rd. The water we used in cleaning up was very trifling. From the 10th December to the 24th I think I did say wfe might have used a dam a week. It could only be in cleaning up—we were not sluicing more than three days. A quarter of a head for about four hours per diem, every other day, would be all we would use in cleaning up. It would carry tailings out of the box. The tailings would lay on the bank. We sluiceifc on j»the bank. At those times the tailings would lay on the bauk—the small drop of water might find its way down. On the ralth March, having been serve by the complainants with a writ, took Gutße to see what damage was done. Pound none. All clear water flowing then. The side race was then filling the race. There were tailings at the head of the race, and no water flowing in there. I measured the Burning with a rule. Did-not mea-: sure the depth of the water in the race on that occasion. Did not measure the depth of water between the head and the second creek. I may have put-a shovel down. I have had conversations with plaintiffs, but have never said I would be glad to get rid of them. I nei er jumped their claim. I applied for a mining lease, including ground marked out by plaintiffs. Guffic and I applied for the lease—no one else was concerned in it. Had not then prospeeted the ground. Did not apply for the purpose of getting rid of plaintiffs.

We purposed working the ground by water obtained from the same creek. 1 know that there has at times been only half a head in plaintiffs'race.

Feidat, August 14. | [William Giiffie and Andrew White were also examined for the defence. Their evidence in full, we regret, was crowded out. Will be seen published in our present issue.] Patrick Jackson Greer: I worked at Clarks for many years. I still hold interests there. In the Blue Duck and Webb's—both one race, owing to an enlargement—also three heads called the Nuggety Eace, carried from the Waitaki side of the range. The races are constructed to a point where, if let alone, the water must run down Tait's Gully. Cross-examined -. Before working on the Kyeburn side the Waitaki shed was used as an outlet. Some of the licenses were applied for so as to discharge on either side. Extensions were subsequently got. 'l*anplied myself. I did not give plaintiffs notice of the extensions, but I did of a diversion from the Little Kyeburn, which they took no notice of. There are four branches; only two are shown on the sketch. We have a race that takes water from the upper portion of the right hand branches of the Little Kyeburn the right to which is nine heads. At ordinary time wo got nothing but a cradle stream. In times of flood we got £ full supply. My impression always has been, and still is. that the right band branch has more than two-thirds of the water at the junction. I could swear that quite safely, and have a little margin left. The right is now diverted into the side race, to prevent it mingling with the dirty water.

TVTr.Ubwlalt addressed the Court.': Defendants, ho said, had shewn licenses authorising them to use them for goldmining purposes, and, therefore, for whatever may be..-fairly done" with the water in. bona fide goldinining; purposes. He argued, if defendants showed reasonable diligence in the exercise of their right, they would not be" lield liable for damages, unless for extraordinary neglect, which had : not been attempted to be shown. The counsel on the other side had made a point as to the necessity of giving notice. .]S 7 ow, .in anticipation of argument, he might say that, according to the rule, the plaintiffs were not interested in the diversion, as a diversion, and thence were not entitled to any notice. Defendants have put in evidence f<r (ail 'races; ; clearly authorising use for discharge of" auriferous earth. It has been proved there is no other outlet, and he submitted the right Lo the tail race, gave a right to run into the Gully. He also submitted plaintiffs' water licenses produced did not give a right to five heads of water. They produce a license of February, 18(U5, for a race from the falls of Lit' le Kyibnrn. The second right they produce purports to be for a race from the Little Kyeburn. There is no evidence as to where the second right was headed from. If it wrss eorreet. t hut these lieetises were-'iiie»iisi.steut>-:aiid his contention was correct, it was clear that the plaintiffs were not entitled to damages for more'than one head. He also contended that damages could not be increased, [otherwise the Bth section of the Act of 1866 would be of no force. If the plain- [ tiffs hllow the ten days to lapse, without 'appealing, it proves they are satisfied with the Warden's decision. He pointed out the discrepancies in the evidence betwecuCaspar and plaintiff. Mr. Mouat submitted that his case-had been "substantially proved. Tlie defendantsseemed to think it. would be sufficient ..if they took a very little trouble—if they allowed the plaintiffs to exist at all, they conferred a favor upon them, no matter whether they got dirty water and tailings or not. t can scarcely believe that any Magistrate out of a lunatic asylum could divide a day, into two days in awarding two fees to assessors because they sat from 11 am.to 1 p.m. An officer so acting could ' not be fit to hold any offic'al position. His Honor r I really think these observations should not be continued. .1 hope this will not be pressed. p Mr. Mouat. I may say that if Mr. Rowlatt is correct (I only have spoken hypothetically) he wight not to-let it atop here, Hia Honor said counsel should remember that their remarks in this Court have, deservedly, great weight. They should consider carefully what words they use. Mr. Mouat: Mr. Lawer was exceedingly careful not to admit having used any water at all. I think all the witnesses agree to having seen the racs six times, and yet there is no evidence of measurement. .. On the other hand, we have the fact in evidence that the complainants had to send men and pay then* -to-go. and clean the race. To pay for nothing seema highly improbable. I don't think the legal objections raised are of any importance. I, at any rate, can't throw any new light upon them. His Honor: I could not vacillate my decisions already made. I can reserve the points, however. Mr. Mouat: I think I have been before your Honor, and interested, over thirty timea in which these points have been ar-

gued out. There is nothing material in the alleged inconsistencies between the rights. The one was taken up at a very early date. There was an Act to validate races cut prior to the issue of the licenses. If the defendants had a priority of right there might be a shadow of reason in the arguments adduced. Carried out to their legitimate issue, Mr. JRowlatt's arguments would upset all property. He proceeded to argue that the want of notice which he had brought out in evidence had been frequently heldf. to-be, by our best Wardens, sufficient to upset the right. He submitted V diversion meant all the consequences of such diversion. Diversion, as applied to tail races, means more than the diversion from the creek.-:" With regard to damages, the plaintiffs are clearly entitled to be compensated for their full loss. There has been no attempt to show that the loss has been less than is stated. With regard to Christian's discrepancy—confusing 9th March and 9th May—witnesses are never to be held exact as to dates. He regretted that, from .the nature of the case—no better evidence can be produced of the damage done. As far as he could ascertain, the case in the lower Court had been most irregularly conducted. We had no evidence on which the Warden based his judgment of damages. We find the very unusual course taken of the Warden calling assessors, and sitting and voting with them. The learned counsel quoted from the 4th section of the Act, 1872, proving that the joint sitting with the assessors was clearly illegal. Supposing the power, discretion should have taught the Warden to treat the Assessors as a jury, and merely directing them as to the law. His Honor: Sou are supporting the Warden's judgment are you not ? » Mr. Mouat: To a certain extent. We ask for an increase-of damages. I wish to show the great irregularity of the proceedings, *o that your Honor may not hesitate to alter the decision as to the amount of damages: My friend has alluded to the Wardens a3 being stewards of the public estate. I don't know what he means. As to the discretion of. Warden?, it really seems they show fcheir'discretion by using indiscretion. His Honor : Hare you letters of marque tohunt down ?

Mr. Mount: No-by no means. I recognise the extreme difficulties they have to contend with. His Honor: That is better, now. .The learned counsel then concluded his remarks after again pressing for an increase of damages. His Honor said he thought the judgment of some years ago had been conscientiously endeavoredjtobe abided by. The defendants have been willing to take on them the reasonable observance of their duty. Of courseat times it has been necessary to apply stimulant*. He observed that the whole amount of damages so far recovered did not amount to over £3O. In this case the Warden appears inclined to give substantial'damage.B. He eould not go back on his previous decision. Thought the defendants clearly have no right to discharge tailings upon the head of the plaintiffs' race —we may here put aside any consideration of merely sludge water. There is no doubt in this case there has been a discharge of such material as stones and sand. The facts, not .being varied he would indicate that he must adhere to his former decision. He thought the damages given would be .felt as a smart, and, if they (the defendants) have to. pay the costs of this appeal,, they will dotheirbest to prevent further damage. He would indicate that his judgment—subject to the decision on the special case to be stated—would be to confirm the Warden's judgment, with , costs. He was riot inclined ta increase damages, if the verdict

badbeen£so, £6O, or £Bohe might not have varied it. He did not think theWardenliad arrived at his judgme»t in at all a bad way. Costa were computed for plaintiffs—witnesses, £4 145.; professional fee, £10; for defendants— • witnesses, £5 10a., professional fee, £5.