WARDEN'S COURT, LAWRENCE.

Tuapeka Times, Volume I, Issue 28, 22 August 1868, Page 3

WARDEN'S COURT, LAWRENCE.

(Before J. L. Simpson, Esq.) Monday, 10th Angust. Casey v. Bently and Syret.—This was an action to recover the sum of £10, being amount of damages sustained by Casey by the defendants' tailings filling up and otherwise destroying his tail race. Evidence having been led on both sides, the Warden found for defendants, without costs. Wednesday, 12th August. IMPORTANT MINING CASE AT BLUE SPU*. Thompson and party v. Evans and party.— The plaintiffs sued the defendants for LIOO, damages -alleged to have been sustained by them in consequence of the blasting and mining operations of defendants causing the water race of complainants to break away. Mr. Shepherd appeared for plaintiffs, and Mr. Keen for defendants. . At the request of Mr. Shepherd the damages were reduced to L 55. The plaintiffs brought up witnesses whose evidence was to the effect that the whole damage was caused by repeated blasts fired by defendants, thereby weakening the support of the hill. They proved that the whole of the eastern side was on the move even as far as Keppel's claim, and that this was caused by defendants. The whole of the evidence for the plaintiffs went to establish this fact. The evidence adduced by defendants went to prove that the water races rnnning on the hill were the sole cause of the damage, the water of the races penetrating through the many fissures which traverse the hill in all directions exercising a heavy pressure, thereby causing the movement now going on, and occasioning the damage with which they are charged. The foSowing was the Warden's judgment : — I adjourned this case for two reasons ; in the first place to view the workings, the subject of this suit, and secondly, to consider whether it would be advisable to call for the evidence of scientific men to assist me in coming to a judgment of the merits of the case. Since the case was adjourned I have carefully examined the workings referred to in this suit ; also the water race of the plaintiffs, and have fully satisfied myself on all points of interest. With reference to the calling of scientific men to give evidence to assist me in coming to a conclusion, I have determined to dispense with such evidence, and agreeing with the argument used by the plaintiff's counsel, that one pound weight of scientific evidence produced on one side would produce a corresponding weight on the other side ; and would probably result in the witnesses trying to build up a speculative theory of their own, and that without possesing practical experience. I will therefore rely upon the evidence produced. I will give a brief history of the workings at the Blue Spur,- as bearing upon this case. The race of the plaintiffs was formerly used for mining purposes in Gabriel's Gully, and subsequently the present cement claims on the Spur were discovered, and the plaintiff's race was used in connection with same. Other water races were used for the purpose of ground sluicing, the water power alone proving insufficient. Another agency was introduced, viz. : — blasting with gunpowder, which is used in large I quantities. All parties join issue in ad- | mitting that the agency of powder considerably affects the workings. The defendants finding that their workings and dam were affecting plaintiff's racesomo months back, removed same at their solo cost, thereby admitting that it was their duty to avoid impairing the race. About the same time defendant's own dam cracks and becomes worthless, and I have no evidence before me that the defendants attributed same to the workings of othera than their own. A case has been decided in the Supreme Court that the holders of a lease do not swallow the rights and privileges of license holders, and I therefore rule that the defendants under their mining lease, only hold their ground. Subject to tho various rights of others, I have before roforred to the defendants huvipg applied to remove plaintifTs race, which* application was granted. Such removal in no ways affeotod the

then existing rights of the plaintiffs. Th© defendants have urged that other parties have contributed to the damage complained of, but I hold that the defendants do not get rid of their responsibility, because they were not the sole cause. For instance in the case of a collision between two coaches or two trains belonging to two companies, an accident accruing to a third party through negligence, the party injured could sue either party for the damage sustained, and could elect which to sue. I am of opinion that in shift oase equity does not call upon me to relieve the defendants from their common law liabilities. The defendants have for their defence partly relied that the damage was partly caused by the mining operations of Morrison and party and Keppel and party, but I think their contribution towards the damage has not been proved, and that their operations were more distant than the defendants, and less likely to have caused the damage complained of. lam of opinion that the running of water over the surface of ground tends to weaken the surface ■oil, and has partially done so in this case, and that the chief cause of the weakening and slipping of the soil and ground has been caused by the defendants, and if they have thought fit to make use of an agent in the shape of gunpowder, the operations of which they could not control, Iljrule they must take the responsibility for damage caused by the use of such agent. I therefore for the reasons given by me return a verdict for plaintiffs. Mr. Shepherd : I beg to draw your Worship's attention to the fact that the sole evidence before th© Court as to damage is the evidence adduced on behalf of the plaintiffs, -which has not been in any way contradicted by tho defendants. Mr. Warden Simpson : Such is tho case, I must therefore accept that evidence as being a correct estimate of the damage. Verdict for plaintiffs, damages L 55, costs of Court, and each party to* pay their own witnesses. Thursday, 20th August. ' Lawson v. Bentley and Another. — A complaint for running tailings on * track or road at the head of Gabriel's Gully. Mr. T. L. Shepherd appeared for the plaintiff. The case was withdrawn, the parties agreeing to the Warden recording an agreement between the parties, that the defendant should construct a road on the side of the Gully opposite the Blue Spur, fronting the residences, in lieu of tbo one destroyed by them.