DISTRICT COURT.

Tuapeka Times, Volume III, Issue 124, 23 June 1870, Page 5

DISTRICT COURT.

(Before His Honour Mr. Justice Gray.) Mullin and party v. Hall and party and Morris and party. — Claim, £150 against each party for damages sustained by them in consequence of defendants water race carrying away a portion of their claim. Mr. Gooday for plaintiffs, and Mr. Copland for defendants. The assessors having taken their seats, Mr. Gooday opened the case for the plaintiffs, and called William Best, who, being sworn, deposed to his being one of the partners of the British American Company, Blue Spur. That in 1865 an application was made for a mining lease. That said lease was not obtained until December last, but that the ground was protected from date of application. There were certain races across the claim at the time of application, and the parties had lost their rights thereto in consequence of non compliance with the regulations and frequent removals. His evidence went to show that their ground was carried away by the races of defendants, and not by any other agency. He considered that the richest part of their ground was on the surface. lie estimated the amount of gold carried away at 200ozs.

Being cross-examined it appeared that he was connected with the claim only for about two years, and his knowledge of the various circumstances generally was not profound.

W. Gumming, being sworn — His evidence was rather favourable for the defendants.

James Farrel's evidence was on the whole favourable for the defendants, as he attributed the main cause to the workings and powder. His attempts at facetize were well received, and caused some amusement. In this he appeared in his element.

P. Uren — This witness has charge of the water of the Waipori Water Race Company, and his duties cause him to be on the Spur every day. He gave his evidence in a straight-forward manner, and, on the whole, was favourable for defendents. He exonerated them from any carelessness as regards their water rights.

James M'Kinlay — This witness attributed the primary cause to the workings below. No doubt water in however small quantity being allowed to permeate through shaken ground hastens theend. The witness estimated the damage/ at 200 ozs. Thomas Cousins — This witness attributed the whole damage to the workings below, and that the water race had very little to do with it. His opinion was that the race but for the workings below would last for ever, and "a wee while langer." This witness upon being asked if he could estimate the damage sustained by plaintiffs, replied that as he did not "sau" (sow) the gold, he could not tell ; but if he had the "sau'n' o't," he would be in a position to do so. Here the examination led to an enquiry into effects produced by powder ; the witness was asked by the learned counsel if he knew the configuration of the land that had slipped. The witness looked round the Court apparently bewildered. The Judge quietly remarked that that word evidently required a blast.

Thomas Hinde — This witness attributed all the damage to the water race and to the working of M'Nab and party — they had washed the ground beyond their boundary years ago, and had encroached on the reserve, and their workings were mainly instrumental in crusing the damage. John Kell, one of the plaintiffs, was examined. This witness was inclined to the belief that water was the chief agency in causing the damage. He, however, stated that if the workings below had not taken away a great portion of the hill the race would, never have given way. He then qualified his statement by attributing the damage to both workings and water.

Charles Mullan, one of the plaintiffs, was examined. This witness laid the whole blame of the slip to the unfortunate water-race, and that his mates never consented to the race being cut over their claim. As they had no lease (although applied for, they thought it policy to say nothing until they got their lease) nothing further of importance to the case was advanced by tins witness. William Livingston was examined. This witness gave evidence to the effect that the surface was by far the richest ground for gold. The nearer the miner gets to the crown of the spur, the richer the yield. He owned the half or nearly so of the claim now in dispute. He held three and a-half out of seven and a-half shares. He sold the lot some years ago for LSO. His opinion was that the race would last for years but for the working. If the shares he had sold were his property now, he would stick to them, as the ground would be more valuable bye and bye when the surrounding claims are worked out. His opinion, however, was that at present it was of no great value to tlie holders.

This concluded the evidence for the plaintiffs. Mr. Copland having addressed the Court, Mr. Morris being sworn, was examined at considerable length. He attributed the whole damage done to the action of powder, and that the plaintiff had materially contributed to their own damage by recklessly allowing their water to flow over broken and cracked ground. This witness gave at considerable length his experience as a miner of long standing in the home country, on the effects of powder on the various strata. At this stage of the proceedings, Mr. Gooday had to leave-Lawrence, and Mr. Mouat conducted the case for him.

Mr. Wilkinson being sworn. This witness was brought to prove that he held a water right since 18G4 over grounds of plaintiffs ; that a- long time ago he had given Hall and party permission to use the same, and for which permission he was to get some water from them. The permission was in writing — it is now in Court.

John King being sworn. This witness attributed the damage to the workings and powder ; water had but little to do with it. The plaintiffs themselves used their own water without care, and hastened their own damage.

John Cormack being sworn. This witness gave his evidence as a party entirely disinterested. He considered that Mullan's own shot would have an effect upon the ground earned away. That the water without the workings would never have caused the damage complained of.

Other witnessess were called ; their evidence confirmed the statements of previous witnessess — in fant a repetition.

The Judge summed up at considerable lengh, and submitted the following issues :—l.: — 1. Were the defendants trespassers ? 2. Did they use the water negligently 1 3. AVhat was the amount of the damage, if any ?

To the first issue, the jurors, three to one, found that the defendants were not trespassers ; and on the s-ejond issue, that the defendants had not used their water negligently ; and on the third issue, that the damage was occasioned by these agencies, powder, workings, and water ; but they had not sufficient evidence before them to determine how much was done by the effects of water. They recommended that each side should pay their own costs, in which the Judge concurred. Judgment for defendants. The defendants applied for a new trial, on the ground of misdirection of jury, and that the verd jet was against the weight of evidence. Roberts v. Mears. — As the parties could not agree, the Judge gave hia decision. He dismissed the case, and ordered each party to pay his own costs.