WARDEN’S COURT.—Yesterday.

Thames Guardian and Mining Record, Volume I, Issue 24, 3 November 1871, Page 3

WARDEN’S COURT.— Yesterday.

Before W. Fraser, Esq., R.M. K. W. Rice v. J. Giiidwoob. — This was an application for possession of a machine site on the Waiotahi Creek on the ground of its not being worked for the space of more than one day preceding the day upon which the plaint was laid. Mr. Dodd for complainant; Mr. Tyler and Mr. Macdonald for defendant. —F. Burgess, clerk in Registrar’s Office, produced the register, and proved the grant to Jas. Girdwocd of the machine site in question on the 19th March, 1870. It was registered on the 21st of the same mouth. It lias not since been transferred, but still stands in the name of J. Girdwood.—R. W. Rice, the complainant, deposed that he knows the machine site in question. It has not been used for mining purposes for the past 12 months. No work has been done there that witness is aware of, except that an engine may have been moved from the ground. The tables are there still. During this time there was sufficient water to have kept the battery going. The doors are not open. Mr. Girdwood is in Melbourne, to the best of witness’ knowledge and belief. The battery was at work once for about 34 hours. Witness now seeks authority from the Warden to take possession of the site.—J.D. Bentley gave corroborative testimony as to the site having been unoccupied and the battery unworked for more than a year. —By Mr. MacDonald : I am not particularly interested in the case. There is a slight understanding between us, as I was there when the ground was pegged out, and I might have a show if plaintiff wins. I have paid £2O in expenses. I might have vhalf of the concern perhaps, and I might get nothing. I paid the lawyer’s fees. I believe I also paid Mr. MacKenzic for the plaint and two subpoenas.—Peter Dewar also testifiedio the non-working or occupation of the ground for two years.—J. S. Fitch stated that he resides immediately opposite the machine site in question. It has not been worked or occupied so far as witness knows since August, 1859. —This was complainant’s case. For the defence’ no evidence was called, but Mr. MacDonald contended that the plaint was not applicable to the case of a machine. —A discussion here took place as to what occTirred when the case was hcaid on a former occasion as to the plaint being sufficient, or its having to be amended.—J. E. Dodd, barrister, &c., deposed that on the case being heard on the last occasion, the Court ruled that the plaint was sufficient. —Mr. MacDonald then repeated that the plaint in this case was not applicable to this class of property, and that, n oreover, Bentley was the person who should have brought the action; at all events he was as much interested as the other, and ought to have been joined, and it was evidently a case of champetry and maintenance. —The Warden said on the last occasion when the case was before the Court he did say that he would hold the plaint sufficient , but it was to be amended by the insertion of the words “ one month ” instead of “ one day.” At all events, however, after the evidence of Bentley, he must nonsuit the plaintiff, but without costs. At the same time he considered the evidence very extraordinary, of this machine site having been unoccupied so long, and that it was a proper case to be brought before the Court.

Christopher Greenway v Henry \ t ei:non. The plaint in this case set forth, that the complainant is the holder of a license to construct and use a certain water race on the llape Creek, granted by Mr. AALarden Baillie on or about the 13th March 18G8, and that the defendant, on or about the 21st October 1871, encroached upon the same, and pulled down, seized and carried away a large quantity of timber, used by complainant in the con struclion, maintenance and repair of the said water race, whereby the interest of the complainant has been seriously injured, and be therefore asks the AVarden to award damages, and to cause the defendant, his servants, implements, goods, and chattels to. bo removed from the claim ; and that an injunction be issued to restrain future encroachments on the part of defendant. For plaintiff Air. Tyler and Mr. James Russell, for defendant, Air. Macdonald andJMr. Dodd. Air. Macdonald applied for an adjournment, owing to (lie absence of a material witness, (Air. Mackay), who had not been served although every effort bad been made to serve him.—Air. Tyler objected as Air. Greemvay and his witnesses were here at considerable expense and inconvenience, and the battery could not be worked with the flume in its present state. The AVarden intimated that as regarded the question of the race being within the Gold-= fields boundary, he must uphold the grant of Air. AA’arden Baillie In 1808, whether it was within the Goldfields boundary or not. After some discussion in reference to the adjournment, the case proceeded, but was. stopped at the outset by the AVarden suggesting that if substantial damages were sought, there should be assessors. Air. Tyler said he did not ask for assessors, and the case went on. The AALarden said he should not recognize any Crown Grant, if this land were proved to be within the Goldfields. Arrangements with the natives for mining purposes would over-ride any Crown Grant. Christopher Greenway, the complainant, produced a grant from Air. AA T arden Baillie issued to him on the 13th Alarch, 1888. and subsequently renewed, of the water-race in question in the Ilape Creek. (Document produced.^" —Air. AlacDonald objected to the reception of Air. Baillie’s signature without it’s being proved.—The A\ arden said the Court had always recognised the signatures of previous AALarden’s, and he should continue to do so, but be would express no opinion whether or not it was sound law.—Air. AlacDonald requested the AVarden to make a note of the objection. —AVitness went on to say that at the foot of the race is a battery which belongs to him. lie has never altered the race, but about a month ago he gave instructions toAty.Camcron to have it repaired. On Tuesday last witness discovered that the race, &c., had been broken down. The race passes through an allotment occupied by Air. A r ernon. Some of the timbers had been cut down, carried away, and used for firewood. Never gave permission for the race to be interfered with, except for the purpose of repair. The -whole supply of

water was cut off, and could not reach the battery, which was consequently stopped entirely, and it is so now. The loss is £2 10s. p 'r week, and there is the damage done to the race, of which another witness can speak. —By Mr Macdonald: The limning now being put in is larger than that taken out, but only sufficient to carry the quantity of water to which I am entitled by the grant. — Henry Vernon, the defendant, deposed that lie knew the water race in question, which diverts water from the creek to Grccnway’s battery. It passes through an allotment upon which witness resides, as a lodger, with his wife. Some workmen from the Kauwacranga Board have been employed-recently to repair the race. Don’t know their names. They were taking up the old wood work and putting down new, and witness ordered l hem off at the request of his wife. Then did not go, and they broke down the fence.. On Saturday night the limning was undermined, and, witness stepping upon it, fell into the water between two stones and was stunned to that extent that he remembered nothing more for some time (laughter). The next morning witness found that the race had been, pulled up. Some proceedings were taken in the Police Court against the two men who pulled down the fence. The case was dismissed. Don’t remember saying to Mr Dodd that if the race was put up again witness would pull it down. They have not put it up again. Mr Greenway has offered witness money to scltlo the matter. Witness never told Mr. Cameron or Mr. Stewart that he put up the fence on the lot so as to force Greenway to give compensation. The allotment was taken up with a view to. erecting machinery. When Grccnway’s battery was slopped, witness did make an offer for it.—Cross-examined by Mr. Macdonald : I never did pull down the tluming or interfere with it, nor have I authorised anybody else to do so with it. Can’t say what Mrs. Vernon may have done in the matter. The new tluming is six times the size of the old. Mr. Greenway offered money through his agent Mr. Masefield. —Frederick Burgess produced the register and the granting of the certificate to Mr. Grccnway in March, 1808,which had been subsequently renewed. —Thomas Dare, storekeeper, liapo Creek, stated that, on Saturday week last, lie saw a man named Buckley knocking down tho fiuming on Mr. Vernon’s allotment Don’t know whether Mr. Vernon was there. Several people were there at tho time.—Josiali Mallctt,lessee of Greenway’s battery, said lie saw a portion of tho fiuming on Mr. Vernon’s allotment knocked down by Buckley. Mr. and Mrs. Vernon were there Did not see Mr. Vernon get upon the race and fall down. Some 20 or 30 feet of fiuming were knocked down, The water has been stopped from coming down to the battery in consequence, and the mill is at a standstill. It was about 10 o’clock at night when the tluming was knocked down.— T. B. Cameron, engineer, &c., stated that ho was employed by Mr. Greenway to get contractors to repair the fiuming of his water-race. There was no alteration made in tho course of the race, but the new fiuming was larger than the.old. The labour, timber, trestles, &c., on Mr Vernon’s allotment was worth about £5. ' Mr Vernon lokl witness in July last that ho intended to claim compensation from Mr. Greenway for having the water-race running through bis (Vernon’s) allotment. lie said if the men proceeded with the work he would give them into custody. He said he should pull down the race if fhey put it up. —J. Bicheno, one of tho contractors employed to repair this water-race, deposed that he had had several conversations with Mr Vernon about this race. Was pushed out of tho allotment by Mr Vernon on first going to the ground. Mr Vernon said no one had a right to trespass on the land, and gave written notice. He said if Hie repairs were gone on with lie would take criminal proceedings. He threatened to pulldown the race as soon as it was put up. On Monday week the fiuming was pulled down on Mr Vernon’s land.—E. 11. Beere, surveyor, &c., was examined as to the goldfields boundary, and produced, apian, and stated that Mr Greemvay’s battery and water-race are without the boundary of the goldfields as proclaimed in the Gazette of lGlli April, 18G8. It is within tho township of Shorthand and without the boundary. On another reference to the plan the witness said the site in question was within the goldfields boundary. The plan was made at the request of Mr Mackay to show the native reserves. The site in question is not within a native reserve. At this stage of the proceedings Mr Tyler asked to amend the plaint by joining Lydia Vernon, the wife of the defendant, although lie did not know that it was absolutely necessary. The Court assented. Mr Macdonald said he should in this case want Mrs Vernon’s evidence to show that she had' nothing to do with the matter. Mr Tyler said he should not press for the amendment. Mr Macdonald argued that there was no evidence of Mr Vernon having committed the act with which he was charged, and also submitted that the proclamation put in evidence was no evilence of the contents of the agreement with the natives. He called John Charles Young, native interpreter, who stated that be knew Rapaua Maunganoa. (Lease produced from this native to Mrs Caroline North, and an assignment from her to Andrew Kerr and Henry Vernon in trust for Mrs Lydia Vernon). —W. 11. Taipari stated that he knew the allotment in question, which was a native reserve. He was one of the chiefs who negotiated with the Governor about the lands. He was the principal negotiator. (Agreement and plan produced).—Henry Vernon was re-called, and in answer to Mr Macdonald said be did not interfere with the race. The witness repeated what lie stated in his evidence in chief as to his tumbling into the water.—The Warden, in giving judgement, said, from the whole case lie was of opinion that Mr Vernon did encroach upon the water race, and had done damage to the extent of L 7 10s, and that lie be restrained from committing a repetition of the act, and to pay LIG costs. His Worship observed that if people thought they had rights superior to those granted by the Warden the Supreme Court was the proper tribunal to try them in, but to break down peoples water races, fences, &e., was certainly a most improper course to pursue. The Court adjourned at 5.35 pan. until Tuesday next at 11 a.m.

Out of lowa, fishing parties of 30 or 4 couples take along a brass band to play on one side of the stream and drive the fish to the hooks on the other. A mosquito taper is a Pistsburg invention. It creates such a smell while burning that mosquitoes asked to he excused. It drives human beings outdoors also, which is its only defects.. AVagga AVagga, thanks to “Sir Roger Tich borne." is becoming famous in England, where some enterprising coach-builder has patented a wagga-waggagraph, which he describes as “ a speaking indicator for car* liages,”