WARDEN'S COURT.

Tuapeka Times, Volume III, Issue 111, 24 March 1870, Page 5

WARDEN'S COURT.

(Before W. L. Simpson, Esq., Warden.) Thursday, March If. The case of Best and Others v. M'Nab and Others was heard. Mr. Mouat for plaintiffs^ and Mr. Copland, solicitor, for defendants. The following was the complaint :—lst.: — Ist. That at the time of the committing of the grievance hereinafter- mentioned, the complainants were possessed and in the occupation of a certain claim, or gold mining lease, granted to them in pursuance of the provisions of the Goldfields Act, 1864. 2nd. That the defendants, at divers days and times, without first obtaining the sanction of the complainants, owners of the said claim or gold mining lease aforesaid, or the authority of the Warden, did damage,, destroy, or otherwise interfere with the said claim or gold mining lease aforesaid, by unlawfully constructing on the said claim or gold mining lease certain water races* and by diverting or- causing and procuring water to be diverted into and flow in the said water races, by means of which the defendants caused the auriferous earth in the said claim of the complainants to break up and slip away. 3rd. That the defendants, at divers days and times, after- the said aujif erous earth became broken up as aforesaid, negligently and improperly caused and allowed the said water so diverted by them as aforesaid, to, flow and continue- to. flow over and upon the said auriferous earth o£ the complainants, whereby the same- was cairied away from the said claim of the complainants ; whereby the complainants lost a large quantity of auriferous earth out of their said claim, and were put to expense, in the working of the said" claim. Wherefore, the complainants claim £350, , and that an injunction* be issued to restrain the defendants from continuing the trespasses aforesaid*

Defendants pleaded? Not Guilty. Mr. Cousins, on behalf of his party, said that theirs was a registered company, and owned no race personally. The Warden, said he w,ould reserve, their pasty.

Mr. Mouat, in- opening the case top the complainants, said the defendants had unlawfully constructed races since the granting of their leases, and that alone should entitle the complainants to damages, as they would have been deprived of a great part of their claim. The defendants doubtless had. been forced- by

circumstances to bring their races where the damage had occurred ; but he would prove that since their removal to that place the defendants had been most careless in the construction of and in their attention to said races. His Worship might remember cautioning defendants that unless they carried the water in tight boxes damage would be inevitable. They took no notice of that timely warning. The complainants had for some time back been working some useless ground, and now they found, just as they were about to come upon something payable, they had lost a great portion of it through its slipping into Gabriel's Gully. He would call upon Mr, Best to give his evidence.

Wm. Best deposed that he was a miner at Blue Spur, and held a joint share in a gold mining lease (lease produced). Had been in occupation of the land for two or three years. The ground had been five years under present lease. At first there was no other water race near the ground excepting the Waipori race and Campbell and Co.'s race, and another carried across in a flume. The furthest of these races was from 20 to 30 feet from their (Best and party's) boundary line. About nine months ago, in June or July, the ground on which these races were situated all went down with a slip. The defendants served his party with no notice of their intention to carry the races within their boundary. They were brought from the eastern boundary nearer their ground — inside of Ponsonby's race and almost inside of the Waipori Co.'s raoe, M'Nab and party's race was nearest the face after it was moved. He had never consented to any of these races being shifted on their ground. He believed the defendants applied to the Warden. About the 2nd of March witness observed the ground slipping under M'Nab's claim, and called the attention of Barclay and Uren to the damage — the ground cracking, &c. The defendants' attention was also called to the damage on the 9th of March. lie noticed the stands giving way, and told Barclay, and Morris and Johns' party about the 7th of March ; also, on the 3rd or 4th of March, told one of Morris's party. The boxes put in did no good ; they were put in, he thought, merely to show that they had taken some precaution. There was a leakage at the bottom of M'Nab's flume running into a crack underneath the boxes ; the water had no chance but to go into the crack. The water was coining cut of the bottom of these boxes to the extent of two or three gallons a minute. The way the boxes were placed in the race made it difficult to find if they were leaking. They stopped running the water on the 9th of March — were induced to stop because of the ground being unsafe. Next day M'Nab's fluming broke down while a large head of water was running in it. When that happened the ground opened and began to settle down. The consequence of that is that their (Best's) party had lost a great portion of what they considered the most valuable part of their ground. They would not have sold it fur the sum claimed viz., £350. He had heard from Campbell and others that the ground was good. Witness said his party had been working under expectations of the ground being good. lie attributed the land slip immediately to the water races. Cross-examined by Mr. Copland. — It never occurred to them to sell the ground for £350. Did not. complain at the Warden's Court. He served the defendants with a notice, but his party were very much averse to going, to law, unless actual damage; was sustained. The claim was not paying nine months ago. Had heard of a blast of two, tons of powder fired in Hales' claim seven months ago, and was not of opinion that it would affect their claim at such a distance. They (Best and party) moved their water into a race occupied by Cousins and party, which was next to Johns' and party, and on the Munro's side. They ran their water in that race up to. the sth March, when they shifted it down nearer their face, and then moved it again. There own was the nearest race to their face up to the sth of March, after which date they ceased to run water in it. They never ran any water knowing that cracks existed. M'Nab and party's boxes were insufficient in every way — they (M'Nab and party^took no precaution that witness was awaore of. They carried a flume across, which was neither large enough or tight enough. The expense to get at the, ground, which has slipped, cost witnesses party about £1000. ' Ex-amined by Mr. Mouat. — The ground was entirely lost to his party. J. M'Leod Nicholson, Draughtsman, and Assistant Surveyor, had surveyed the ground and drawn a plan, which he submitted to the Court. The ground ■«hieh had disappeared from the' lease was ,41 cubic yards, and that which had sunk was 680 cubic yards. Some of the cracks were 10 or 12 feet deep. Chas. Mullin was called and proved the application Philip Uren deposed to having witnessed cracks in Johns' race about the water level. Never saw any cracks in Best's race and water running. Examined by Mr; Copland. — Did not think Hales' blast affected the ground; in question. Jas. Barclay. — The principal evidence given by this witness was to the effect that when M'Nab's flume came down there were about 300 inches of water running in the race, but it was stopped in a minute or two. He believed it was the workings w,hich, was the cause of the ground slipping.. Since Hales fired their large blast, the ground was all going in the way of that" in question. He believed that water alone TPould not produce the result. Provided the ground was eqxial to some on the Spur, it would be worth £300 or £400 ; but some gro.und the parties would give as much to have taken away. This concluded the. evidence for- the plaintiffs. Mr-. Copland, in opening the case* for the defence, said there was one remark ho wished to make on behalf of the defendants, viz., that it was the object of the Goldfields Regulations that cases should be arbitrated upon amongst the miners themselves. Tn the present case the defendants had been served with a summons without any notice. His Worship said the case was open for assessors. Mr. Copland said he was. quite satisfied

with the assessor. It was evident that these races must ultimately be cleared away, in order that the ground might be worked. He would call upon Mr. T. F. Morris,

On being sworn, Mr. Morris made the following statement : — Singe July his party had a race which remained undisturbed till they were informed that no more water could be sent as all the races were going. After this they saw a large crack in Best's race, which they believed contributed greatly towards ■ bringing down the ground. Best had been running water in Cousin's race up to the sth of March, It was to his party's interest (viz. Morris') to keep up the ground, as they would require to erect a fluming if the ground gave way. There would have been no need for litigation had Best, some nine months ago, restricted them from working the ground. His (Morris') party had been idle for nine or ten days. Cross-examined. — Best could work a great portion of the ground under complaint ; but it would require a deal of skill, as they would be working against the dip. When his (Morris',) party discovered the cracks, they immediately put in boxes to carry 300 inches of water. As to the value of the ground, Hind's party, and M'Nab's party also, had told him that it would not pay for the * water. He considered that the workings close at hand had much to do with the damage. It was a serious thing to allow water to run into cracked ground. The ground had sunk a foot since the water was stopped — that was since last Thursday. On Wednesday his party knew nothing of it. Witnesses' present race was constructed in 1864. He had not himself occupied it, but Mill's and party had. Mr. Mouat here took objection that there were no miner's rights produced to prove that statement. Johns was then sworn. — When he saw it necessary to repair the race, it was done. Mr. Best did not appear to take so much trouble with his race as his (Johns') party took, for he ran water after cracks were in the ground. Best had a dam to prevent the cracks from receiving any water ; but there Avas an escape of about 15 inches, which all went into the cracks. That was about the 10th March, Examined by Mr. Mouat. — There were cracks in Best's race about the sth March, E. Varcoe corroborated the last witnesses evidence, with regard to the overflowing or escape from Best's dam ; and further stated his belief that it was wilfully done. A. G, Thompson deposed that his party had worked ground from the same seam as the ground complained of, and found it very bad. Did not pay more than the price of the water. This completed the case for the defence. His Worship on Monday morning gave the following judgment : — He said in this case a. number of parties equally blamable had been sued. It would have been better to have brought separate actions. This question suggests itself are the parties brought into Court wrongdoers. In reply to this it appears they had all rights to run Avater,, and some of them — Cousins and Johns, for instance — were holders of rights, to run water previous to complainant having a right to run water at all. Complainant admits they had their rights, but he holds that hj removing the r.ices they had also removed these rights. There are none of the defendants excepting Johns and Morris, who deny- this ; the latter state they had never lost their right — it had not been cancelled. The others again, viz., M'Nab and Co., admit moving their rights, and the ground upon which they do so is necessity. If M'Nab and Co are the authors of the mischief, his Worship did not think they could urge necessity as an excuse. They could not contend that if their ground dipped, they had therefore a right to go on their neighbours. What was their authority to run water on the ground under dispute? With reference to Morris and Johns they still held their certificate ; the only objection being the absence of their miners' rights ; these, however, it was said, would be produced. What then was Cousins authority ? He had no personal liability, as his, company had merged or beoi converted into a joint stock company. Cousins was therefore not properly in Court. Complainant slated he had not given his consenc to cut races in the ground ;• but Cousins, produces the application to which some sort of authority was given. It is admitted by all, that defendant had a. right to erect a temporary race,, and the Warden is allowed to grant such a race, although only iinder certain conditions. Mr. Best, the plaintiff, was aware that such an application had been made. He had seen the notices posted. Mr. Mouat here stated thai no service of the notice had been made. His Worship : At all events he appeared to have had some knowledge of it, as he opposed it. Cousins and party could not be said to be tresspassers ; therefore in this case compensation could not be adjudicated upon. Best did not object to the race being on the ground, but in the event of, damage, he held them liable. Cousins and party are not properly in Court, but if they were- v and. it were proved they had caused the damage, they would,, of coiu*se, be liable. Then as to the question of damages.. What was said to have been done ? Their races it is said have caused the ground to slip away. The only party tha*t ar-e wrongously on the ground are M'Nab and Co. ; but supposing they were not wrongously on the. ground, and had caused the damage, they would be liable.. The only damage is that attested to by the surveyor. His Worship, was at a loss to know whether the- damages claimed were for the ground that had. been loosened, or for the ground from the centre to the soil ;. if for. the latter, he questioned whether the defendant w t ould not give the amount claimed for the number of cubic yards ; if only for the ground that had beenloosened,then.he considered the same extravageutly high., It was evident the ground was inclined in the way it had- slipped, before the application was made. Mr* Mouat objected to this, and said he thought it was not so. His Worship : It was very evident, at all events, complainant could not have worked the ground without the permission of the defendants. It could only be worked on the Gabrisls side. The com-

plainants were either asking the sum of £350 for the quantity of stuff, or because of the inconvenience to which they would have been put in washing the stuff from the Gabrieb side. There were 41 cubic yards of ground actually gone, and the evidence with regard to its value was meagre in the extreme. He had no data to go upon. No practical experience of its value had been submitted to him by those who had worked the adjoining ground. Then another question, and a most important one presents itself, could or did the races do the damage attributed to them ? Had they auy evidence that they did I Best, Mullin, and Uren would not say that the races did the damage. But it was admitted by all parties, that some other agent had broken the ground ; that it had been a gradual arrangement. If it were the races, then the answer would be ready. Of the other agent he would remain' silent. As to the matter of negligence on the part of the defendant, no such charge was brought against any of them but Johns, There was no evidence to prove that their races carried the slip — they simply hastened it. The great cause was the cracks ; of that there could be no mistake. He did not wish to judge hastily that the races were not closely connected with the wrong ; and he would ask the complainant at this point whether it would not be better, as lie had not brought the party to Court who were primarily connected with the damage, to accept a non-suit. The principal wrongdoers not being before the Court, he could not give more than nominal damages. Looking at the whole of the case he could not grant the damages claimed or anything like them. He would first prefer to have skilled evidence. He could not but think M'Nab and Party were thetresspassers. Non-suit accepted.