WARDEN'S COURT.

Mount Ida Chronicle, Volume VII, Issue 381, 30 June 1876, Page 3

WARDEN'S COURT.

Junk 23. tB fore IT. W. Kobinson, Esq., Warden.) William Newman (Manager Enterprise Water Rate Company, registered) v. George Murdoch.— Claim £SO, damages for injury caused by the discharge of tailings and tail water into a tail race, the property of complainant. Mr. Hertslet for complainant, Mr. Rowlatt for defendant. Mr. Rowlatt objected that the suit properly should have been brought in the name of the Company, the property injured being apparently claimed by Mr. Newman as Manager only, and not in his own right, The Court held that the expression as Manager, &e., must be taken simply as a declaration of trust, and that Mr. Newman could sue. Mr. Rowlatt then pleaded a general denial. Mr. Hertslet produced plaintiff's miners right, to which Mr. Rowlatt objected that it was in the name of William Newman merely, without the addition as Manager, &c. It wa.« agreed that a view of thu ground taken in a previous ease between the same parties should be held to bo sufficient for the purposes of this case. William Newman was then sworn, and produced certificate for a tail race in Wet Gully, with extension, by way of the saddle at head of Union Gully, to Main Gully. About the 9th of May last his attention was called by one of the Chinamen to whom he had let the race, to a damage that had been occasioned by a cischarge of water and tailings from the traps in the side of defendant's race. Pie attributed the damage solely to the escape from Murdoch's traps. His tail race had been constructed to cross under the road by means of a tunnel. The present tunnel had been cut about October last, as near as possible to a former one that had fallen in. The body of water had lodged i;: the I'laim opened out by the Chinamen above the tunnel. Had spoken to Murdoch about the mischief, but Murdoch had said that he would go to Court to test the right. Ah Hin, for whom George Too Fee acted as interpreter, deposed that about May 9th an excessive quantity of water and tailings, about fifteen or sixteen heads, was let down by Murdoch's mate, bringing down sods and tailings, which filled up the tunnel. The tunnel would have carried clean water, but too n.uch sand came with it. It would take three weeks for three men, with five heads of water for two weeks, to repair the damage Had been working on the race on May the 9th, about 500 or GOO yards below the tunnel, saw the water running down, and hastened up, but the tunnel was, by the time he got there, already choked. Mr. Rowlatt, for the defence, said the case was defended mainly as a matter of right. The defendant, was the owner of aright to take one head of tail water from the junction of Coal Gully and Enterprise Gully, and this right was older than complainant's tail race right. Complainant was bound to protect himself from the tail water coming down the Gully. The mis chief had mainly been led to by the opening of a large ciaim by the "Chinese-. He called John Bradley, who said he had at one time been a shareholder in the race now held by defendant, and knew the tunnel in complainant's race. The original application for the diversion of complainant's race to go round Union Gully was on a line ten or twelve yards distant from where the tunnel was actually made. The race had always been cleansed by the opening of the trap 3. The Chinamen had put up a protective wall, but had no protection against the water coming from the traps. George Murdoch, the defendant, being called as a witness, produced a miner's right, dated 9th August, 1875, being a renewal; also a water license, dated 21st January, 1868, with subsequent renewals. Mr. Hertslet objected that the water license did not go back far enough to establish the seniority claimed for it. Mr. Rowlatt pointed out that the license produced was marked " renewal," but said that, to avoid argument, be would ask for an adjournment to June 30, to enable him to produce the original. Adjournment granted, with 10s. expenses of complainant.

William Hendrickson v. Arthur Simpson. —For forfeiture of an abandoned tail race. No proof of service. Ca3e struck out. John Blair and Another v. Kim Sue.— For £l2, damage to a water race of complainants in Spec Gully. Adjourned to June 271b, for the Warden to visit the ground.

June 27. The Warden, having visited the ground, trave judgment in Blair and Another v. Kim Sue as follows, by consent :—Damages £7; if defendants cleanse the race for an agreed length of sixty yards, and repair a certain break in the race, which was pointed out on the ground, within seven days from date, the judgment to have no force, otherwise to be in full effect ; costs of complainants 405., with 10s. costs of Court.