COLLINGWOOD.

Nelson Evening Mail, Volume IX, Issue 301, 21 December 1874, Page 2

COLLINGWOOD.

IMPORTANT MINING CASE. (Btfure Mr Wabden Goisnefs) Wednesday, December 16. Sainsbury and others v. Avery and others. This was 8u action brought by the complainants to obtain the cancellation of a certificate of registration allowing the defendants to place a dam in tho bed of the riv<r Aotere, near blateford, and claiming £586 .B Cdfor damages done to to-npLinsnt-i' eMm from the water being forced back upon it by the defendants' dam. Mr Fell apj* eared -fjr the complainants; the defendants were represented by Mr John Avery. Tie case excited much interest in CollingwooJ, and ihe Court was crowded throughout tbe cay. For the complainants it was shown that tbey were the holders of an extended chin 600 feet long in the river Aorere, across put of the bed of which they had, towards the end of 1873, erected a msssive dam with a long line of crates, down the centre of the stream, and the bed of the river bthind this dam being laii bare they had worked it to great advantage until February, 1874, when a dam of an exactly similar character erected lower down the river by tho defendants was finished. This lower dam penned the water ba-k upon compla-nants' claim and raised it some 10$ inches, the result of which was that instiad of working behind their dam dry as before, the ground wa3 flooded and their work became "blind-stabbing," their yield of gold immediately fell off, and their claims was rendered comparatively valueless. No notice had been given by defendants to the complainants of their intention to apply for a certificate for a dam. For the defendants, it was alleged that the waier could not have been penned back as sta-ed by complainants' witne*se*?, and that, if it had been so penned back, the damages claimed were excessive. Further, that the certificate bad been applied for according to the practice in tbi3 Court under the late Warden. After a hearing which lasted all day, the Warden reserved judgment, which he delivered next day as follows: — This is an action brought to obtain an order of the Court to cancel the defendant's certificate fcr a dam, and to recover damages for the injury allege.-! to have been done to the complainants by this d«m. The contention relied on by complainants, that the certificate was obtained without giving due notice, is proved, as the defendants have not denied the averment that they, the complainants, had had no notice from the defendants The mere fact of posting a notice of application is, in most cases of application, not sufficient., as by the Regulation of 1873 for the Nelson Goldfields, clause I. section 10 a notice signed by the Warden and the applicants of the intention of the applicant, must be given to allpersons whose interests will b - obviously affected, and that the defendants had knowledge that the complainants' interests would be affected is proved by sbeir having given notice to the defendant', "warninsr them not to put up their dam. As to the "plea of the defendants that they Ind obtained the certificate after posting notices in the usual way, the Couri jb bound to decile the question, not on the grounds that such a proceeding had been hitherto sanctioned, but on the Regulations in force under the Goldfields Acts. It cannot be set up tbat, because an irregular course had been in use, the Court will allow such an irregular course to be a precedent. As to the question of ihe Court having the power to cancel a certificate I refer to cUuss 7 of section 10. which says that if any certificate of registration shall have been obtained by misrepresentation, or if any of the prescribed conditions have not been duly complied with, or if, aftes the issue of the certificate, any objector shall appear and show to the satisfaction of the Warden that he has a valid objection, and shall show good cause for not having appeared at tbe time and place appointed for the hearing, the Warden may cancel the certificate or make such other order known as may be just and equitable. From the evidence of Nightingale, Sainsbury, and Hambrook, the last one of defendant's own witnesses, it is clear that the defendant's dam caused the water to be backei up on complainant's claim, and I cannot accept the mere opinion of the witnem Brjcc that ie could no* be so [

backed, against such clear and positive evidence of the contrary being the fact, therefore it is proved that the water was backed "j, t0 the complainants' claim by the dam. That the water caused damage is clesr from the evidence, not only of the complainants, but of the witness Sanders, whose very clear statement proves that the work done after the water was backed up, was very consider ably-h-si remunerative, (a third of the gold, he says, would be lost) and is, to my mind, conclusive that large pecuniary lo*s has accrued to the tompldinanti-. Therefore, the question of damages now remains to be decided. The complainants have handed in a clear statement in support of their claim for damaghs, and the defendants have raised no objection to the first part, amounting to £149 14s 6d. As to the remainder of the claim, amounting to £436, the defendants say that from the nature of auriferous ground it is impossible to prove whether it would produce the amount cl«imed, and as this is a question which seems to be too much a matter of probability with too litt c data for arriving at an Accurate estimate, lam of opinion that this sum cannot be awarded. Therefore, the verdict ol the Court as to damages is for the sum of £149 14s 6J. Judgment, there r ore, will be for the comp'ainants for the cancelling of the defendants' ceriificate, and damages £49 14s 6d, with costs £9 Bs. The defendants may make an offer to bo allowed to alter their dam, or to construct such other works as will in the opinion of the Warken effectually prevent any other flooding of the complainants' claim, and may have a certificate for such altered dam or flood-races as they may propose to construct. On tho application of Mr Fell it was ordered that unless the defendant comply with the last condition within one week from this date, the dam may be removed without compensation.

(.For remainder of News see fourth page.)