SUPREME COURT— NISI PRIUS. (Before Ais Honour Mr. Justice Chapman.) Saturday, Mat 6th.

Tuapeka Times, Volume III, Issue 171, 18 May 1871, Page 6

SU PREME COURT— NISI PRIUS. (Before Ais Honour Mr. Justice Chapman.) Saturday, Mat 6th.

THE GREAT EXTENDED SLUICING CO., (LIMITED) V. HALES AND ANOTHER. In accordance with the promise made in our last issue, we now lay before our readers a report of the speeches of counsel on both sides in the above case; also his Honour's summing up. We regret, however, that the gentleman whom we had retained to furnish us with, a verbatim repot t was unavoidably absent from the Court during Mr. - Smith's address to the jury for the de ' fence ; we therefore give a summary of $hat gentleman's speech as it appeared „ in the " Daily Times." 'Mr. Smith addressed the jury for the defence, contending that any loss of auriferous earth which the plaintiffs might, have sustained had arisen from causes over which defendants had no control. "With respect to the contention that defendants had deprived plaintiffs' ground of its proper natural support, defeudants denied it in toto, and the evidence must have convinced the jury that the allegation was quite unfounded. In cross-ex-amination, Ad-ims had frankly admitted that his materials for constructing a plan were very imperfect, and this cross-examination had reduced the value of his phn to very slight proportions. The jury would prefer to take the recollection of men like defendants, who had lived on the spot since 1562, an to the actual situa-on of their claim, and plaintiffs to a plan made on such imperfect data. Defeudants had actually measured the ground, and found that a wall of cement, 100 links in thickness, had been left to support plaintiffs' land, and their assertions ware supported by tho testimony of other witnesses. A family party of shareholders had come to the Court for the purpose of fixing a charge against the defendants, and their evidence must be scrutinised with very great care. The real causes of the slipping of the soil were the washings of AI Nab's party, the leakings from his dam, and the flooding of the land by the races beinir cut in March, 1870. it might be urged that the blast fired by defen lants in September, 1870, accelerated the fall of - the ground, but it was most incredible to believe that a blast of powder should cause a fall -.of earth six months afterwards. By thb law of forces, such a result would occur almost immediately after an enormous force of powder was applied, if it occurred at all. Miners wore notoriously jealous of . their rights, and if the race was carryMug such enormous quantities of earth over the cliff as w.is represented, * would not the plaintiffs have taken the - defendants to the Warden's Court and prevented their continuing the injury ? The evidence showed that it was only the top soil that had fallen over, and the part of the wall of cement still standing was sufficient proof that it afforded sufficient support to the ground behind. With regard to the water race, the evidence of Hales and Hinde ought to be accepted as conclusive of their right of ownership before the claim now in possession of plaintiffs was taken up. If the jury decided that the slipping of any portion of plaintiffs' top soil into defendants' claim had resulted from causes over which the defendants had no control, then whatever amount of soil had slipped over was the misfortune of the plaintiffs and no fault of the defendants, and therefore one for which the latter were neither legally or morally responsible. It was, however, obvious that plaintiffs had greatly exaggerated their loss, and the evidence of plaintiffs' witnesses on this point was so vague in its character *" that it ought to be scouted from a Court of Justice. It was clear that comparatively little soil had fallen, and that little, Hales had shown, had entailed a positive loss upon him. The plaintiffs should remember that they had. a duty to perform towards their neighbours, arid it was as unfair for them to endeavour to make defendants bear the whole brunt of the inevitable consequence of the working of the hill by parties of miners, as it would be for a Taieri farmer, who had suffered from the silting up of the river caused by the operations of the miners at the Dunstan and other places 80 miles off, to fix upon one party of diggers at the Dunstan as. the persons to pay compensation for the damage which he had sustained. ' _ And this was upon the assumption - that defendants had contributed to plaintiffs' loss, which he submitted they had not. Mr. Macassey said — May it please your Honour: — It must be a source of gratification to know that out of the^ great miss of confused and conflicting testimony you are nailed upon , nnw to consider, we may cull a few rir^umstanofs .of considerable certainty, and about which there can be no possible dispute. No one, gentleman, prrf^nded' to deny that in the m-'Uth of AX.irch Isuft year heavy laud- j plips oc.-u.rred otvthe ptainfcifiV ground, by means of which th-y have been -de." prived of a considerable quantity of auriferous earfch. No one pretendß to deny that the .natural lie of. the., ground in. the imm'ed.iate, vicinity of

the plaintiffs' and defendants' claims would throw a large proportion of the earth to which I refer upon the defendants' ground, or rather upon the surrpunding claims. No one cau question this ; and it is admitted on defendants' part that they have themselves appropriated a portion of the auriferous earth of which the plaintiffs i have been deprived. Gentlemen, when you consider these circumstances and the fact that no possible blame is to be attributable to the plaintiffs, you have strung together some circumstances which will furnish you with a good key to the whole case, and to the defence which is put forth on the part of the defendants. Before I treat of that defence, let me ask you not to lose sight of these very important circumstances, to my mind, that the defendants, although they admit having compensated M'Nab in respect of the very damage of which the plaintiffs complain, seek to blame for the landslips which occurred. This circumstance shows how necessarily vague, shifty, and inconsistent is the defence which is put forward. Can you characterise in your own minds a defence more shifting and inconsistent? I will take, for instance, the defence, the nature of which you have no doubt observed, about the water nice. From the commencement almost to the close of the defendants' caee, the endeavour was made to establish that this water race, which the plaintiffs allege was improperly cut through their ground, was on the defendants' ground. Although my learned friends were endeavouring to make it so, still they could not get their witnesses up to the sticking point, and it was ouly at the last moment that they came forward with a new defence applicable to what they conceived to be the real state of things, saying, "we now conclude with our real defence, which is something different from what we have stated it to be throughout." The defence, which is offered on the part of the plaintiffs, is inconsistent in some other more striking particulars. In the first place, it is stated, on behalf of the defendauts, that the damage which the plaintiffs complain of is attributable to the act of soraj malicious persons Upon that I shall hereafter dwell. It seems to me to be utterly inconsistent with that theory altogether, when they ask you at the same time to believe that these enquiries are the necessary result of the gradual falling of the ground during the past five or six years, attributable to the acts of M'Nab and his party. It seems to me that the one plain, simple defence should have been — either that the defendants never interfered in any way with the plaintiffs' ground, or granting that the plaintiffs' soil fell upon their ground, that yet it was attributable to some very totally different cause than their acts. But what do they do? While admitting that a portion of the soil fell upon their land, they want you to believe at the same time that it was valueless. In the next place, they want you to believe that they never interfered in any way with the plaintiffs' land, but that, on the contrary, the plaintiffs trespassed on their ground; that instead of the damage being due to the act of the defendants themselves, it was the act of some midnight moral assassins. Then they want you to believe that this damage was caused by other natural causes, over which the defendants had no control, or by M'Nab's party. I say it is utterly impossible to reconcile any of these defences one with the other. Grentleinen, the first question you have to determine is — Do you believe that the plaintiffs have established their possessory right to the land described on the plan produced in evidence. Now, gentlemen, as you know, the case which the plaintiffs make is this — We are in possession, and rightly in possession of the portion of the ground appearing on the plan, and tinted red. It is said that being in possession of that area, the defendants have wrongfully deprived them of a large quantity of auriferous earth. My learned friend denies the correctness of that plan, bringing forward, as conclusive evidence of the incorrectness of it, the evidence of such men as Farrell, Campbell, Hales and Hind. Gentlemen, I ask you, in the first place, is there not a strong antecedent probability that the plan is correct. What possible motive could Mr. Adams — admittedly an intelligent surveyor — have in misrepresenting in any way the actual aground of the respective parties ? Clearly no possible interest. But in the next place, all Mr. Adams' calculations are clearly corroborated by Mr. , Cummings arid ; by Mr. Mouat. Both. these gentlemen -are in a position to tell you 'they actually laid down these" pegs themselves, and that peg 75 is at the present time in precisely the .same -place as originally placed by them six years before. ~?ou could not have better evidence of* the accuracy of the plan than that of the very men who originally laid out the grounds In the .first place, in corroboration of its correctness, they tell you the precise spot in which the pesfs were laid down Moreover, the defendants, themselves have not challenged the accuracy of the plan. The defendant Hales would not swear that "peg 75, aa shown by this plan, was not in the positon in which it was placed originally. You remember also bow tfhe accuracy of the plan was corroborated by H&los'a conversation with

Adams. Hales had occasion to complain to him of its accuracy in one respect. Now pegs 75 and 49 are the two important pegs ; were they wronly situated ? No ; peg 50 was in a totally different position altogether to what it was as down on the plan. What inference must you draw from the narrative of the conversation given to you by .Adams ? I take it to be this : That there was no other specific objection to this plan; otherwise it would have been brought forward then. Clearly the contention now put forward is altogether too late. Another attempt was made to show that the plan was inaccurate. Something was said about the position of peg No. 21. Mr. Adams, I am sure, has cleared upon any ground for the latter objection, by showing you that the plan does not at all pretend to show that portion of claim 20 does not abut on to tie road. My learned friend evidently could not understand Mr. Adams on the latter point. He assumed that the regular line which runs through the race represents a road; and therefore assumed that inasmuch as this portion of 20 does not abut on section 21 Mr. Adams was wrong. The mistake is at* once cleared up ; this does not represent a road at all. It represents a reserve for water rights ; the road having a totally different colour. As again ;.t this very conclusive evidence what' evidence have we brought forward. Only the evidence of Mr. Farrell, who having a knowledge of surveying appears also, it seems, to have some legal knowledge. He first swears to a legal opinion in an affidavit for the satisfaction of the learned judge in banco. What is his evidence in his capacity of surveyor ? It is this : that having measured the distance from peg 50 to the actual workings on which the defendauts are engaged only a distance of six chains was traversed ; and therefore at that time the defendants could not possibly have been interfering with the plaintiffs' ground. In order to support that theory, which is founded on the eivdence of Campbell and Farrell, it is necessary to assume that the six chains traversed by fiem is identical with the seven chains that appear on the map. According to the map 700 links constitute the entire distance between pegs 49 aud 50 ; therefore the actual measurement should have found that distance between one point and the other — in other words, before coming to what constitutes the boundary line of the two claims, it was necessary to traverse 700 links from peg 50. But I object to Campbell and Farrell's evidence for this reason : it totally fails to satisfy you that the points traversed by them in any way clearly proves the boundary lines dividing the two claims. Yet this was really the only evidence brought forward in answer to that tendered on behalf of the plaintiffs. You are asked, in the first place, to believe that this plan is inaccurate, although sworn to by a competent surveyor, and verified by the statements made to you by Mr. Cummings and Mr. Mouat, regarding the relative positions of the two claims, by the pegs as laid down by them originally. The whole theory advanced under the first count of the declaration depends upon the question whether you believe the evidence of Campbell and Farrell upon this point in preference to that of Adams and the plaintiff. Unless you believe the plaintiffs' evidence upon this point clearly you cannot possibly dispute that a solid wall of cement was left, as contended by the defendants. They say a wall or 70 or 80 feet of cement was left ; and it is necessary first to ascertain the actual boundaries dividing the two claims and ; therefore I say as the defendants have been unable by the evidence, which they have adduced, to satisfy you of the actual boundaries dividing the two claims, you are perforce bound to accept the plan, the correctness of which has been proved in a very satisfactory way. It will now become necessary for you to consider the further defence which is put forward on behalf of the defendants. In the first place it is said that the landslips which did such great damage to the plaintiffs' land was owing to an act of some person or persons, who one night wilfully and maliciously cut a race running through tbe defendants' land. I am simply shocked at my learned friend propounding so nonsensical a theory as this to you ; I especially wonder how, after telling you how jealous miners are of their own rights, he can ask you to believe such a preposterous theory. No man would commit so serious a crime — because it is a crime — as to cut a water race, without : having some possible motive for doing iso. What is the motive suggested? fWho would have benefited? Why, my learned friend's own clients and M'Na^iitre the only persons who would have been benefited by the atrocious act, assuming it to have been committed. On this all the witnesses agree. I entirely agree with him in tbe observation which fell from him, that miners are naturally jealous of their" rights ; and what I ask you w^rald, have been the natural course to have taken immediately after the alleged malicious act was committed. Do you not think the offer of a reward would have followed the complaint [ laid before the Warden t Do you not j suppose an attempt would have been made to bring to justice these who so flagrantly abused the rights of proi perty, I can only conclude by again i saying that I am surprised such doctrine should have been put forward

in any way, and not vouched by evidence beyond the mere surmises of witnesses. After a lapse of five years, during which time the race has been actively used, and without any sufficient reason that the race should be maliciously cut, it is really as preposterous a theory as I ever heard suggested in this Court. In addition to this contention, that the damage was owing to the act of some malicious persous, it is also suggested that it was owing to the workings of M'Nab's party. My learned friend complains of the theory put forward on behalf of the plaintiffs, and ridicules it. To say that the landslip in March last has resulted from the defendants' blast, fired off in October the previous year, is not more absurd than to say that the damage the plaintiffs' complain of was due to the acts of M'Nab years before ; because, in order to prove this, we have a narrative or history of the claim so far back as 1867-8. Therefore, as we have my friend asking you to suppose that the damage can be chargeable to M'Nab's acts in 1867-8, is it less reasonable that we should endeavour to charge it on the act of the defendants the year previous. But how is the defendants theory supported] First, we have the fact carefully put forward that a man little short of an escaped lunatic, selecting as the site for a dam, the head of a Linslip. I ask you if you can conceive anything more monstrous. Defendants' counsel carefully asked his witnesses, " Did you know of a landslip in 1863, 1864, or 1865 V as the case might be. . [n short it seemed a necessary part of the defendants' case, that on the very spot selected by M'Nab as a site for his water race in 1865, there had been a visible landslip. It is simply ridiculous to sniously suggest any such theory as this. E ask you is there any reason to suppose the dam would have lasted the time it has, if it was in the infirm condition it is represented to have been in ? One of the witnesses said it leaked fourteen inches a clay. It is true, he afterwards qualified this by saving that it leaked fourteen or fifteen inches when the water was turned on, and (ive inches when it was not. Still, granting that it only leaked five inches when not in use, how long is it possible, for any time in reason, for it to exist with a leak of that kind ? I say it is utterly preposterous that there could have been the leak which is suggested. The dam could never been used during the last five or six years, if it had been in the infirm condition contended on the part of the defendants. Agaiu, following up the argument advanced by Mr. Smith, that miners are extremely jealous of their own rights, I ask, do you suppose that the plaintiffs would have allowed M'Nab to have kept his dam in a leaky condition ? Do you supposethat the plaintiffs, so extremely jealous of their own rights, would have allowed near their claim this water ra.ee, if it had leaked in the manner contended ? Therefore, for the r asons I havo advanced — and I think they are very cogent ones, indeed — you will bo satisfied that it is utterly impossible that the damage to the plaintiffs' ground was owing to the cause assigned, or that the dam was in the condition contended for. I ask you whether you can say, upon the evidence, that M" Nab's workings had any material influence on the landslips of March, 1870 ? What was the evidence as to this ? Down to the month of September, 1869, according to the evidence of the younger Uren, the whole of the soft surface of the upper part of the Spur had not been disturbed. It is true, where M'Nab had been working there has been a landslip ; but it was pointed out, during the progress of the case, that it was utterly impossible that this slip, immediately below the Spur, running through the company's ground, could have in any way interfered with the ground above the Spur. This seemed to have been conceded. Now, Campbell, who evidently gave the matter some thought, wanted to impress upon the Court, first, that the consequence of this blast was to make the whole of the Spur move ; but on my asking him about this, he very soon retreated from that position. Why ? Because if the first blast fired off from ths position on which he was in 1867 would have the effect of disturbing the whole of the Spur, what would necessarily be the. effect of a blast fired in October 1869, at a point much nearer to the plaintiff*' ground ? It was obvious, it was a fatal answer, and therefore seeing plainly the consequences of it he retreated from his position. He stated that the point of the Spur was broken latterly, for portions gave way ; at all events we have it from Peter Uren that it was only in the year 1869 that the upper portion of the soft surface of the Spur gave way. But at what time in 1869? it was on that point we could obtain no information from him. If it occurred in the month of October when the first blast was fired by the defendants, then the whole evidence advanced was clearly reconcilable with the plaintiffs' evidence; inasmuch as it has been plainly proved that the surface soil did not give way in 1869 1 , M' Nib's blast in 1867 could have had im mediate effect upon the stability of the plaintiffs' ground. Let us compare the theories. The plaintiffs contend the damage was caused by the enormous blast which was fired in October 1869, when, according to the defendants own account, their ground was in an infirm condition,

My learned friend as I have . pointed out, ridicules this as being absurd, because it involves this : you are called upon to believe that the blast created effects which wero felt more than six months afterwards. Is it more absurd than the theory positively deposed to by witnesses that MNab's workings, occurring years before, could have the effect contended for? I say, therefore, that the defence which is put forward is altogether ridiculous. After all, the question which will have to be seriously considered will be — Do you think that the blast of October 1869 had the effect contended by the plaintiffs. Upon that point we have a considerable body of evidence. In the first place I would cay this : if the defendants' contention be true, that the plaintiffs' ground was in the highly dangerous condition contended for, do you not think it simply preposterous for the defendants to bring down this enormous blast, knowing that the whole of the shifting ground would be brought down? Coming to the effects of the blast — what is the evidence ? In the first place, you have M'Nab, who has no friendly feeling towards the plaintiffs for the simple reason that he has been compelled to pay them compensation. He tells you be was standing on the ground in t c neighbourhood at the time the blast was fired, and it gave a " regular lift" — that was the expression he used. Another witness, Connolly, said it created a great concussion, this is the most satisfactory piece of evidence of the whole. You have Mr. Bartley telling you that before the blast was fired off down the fare of the plaintiffs' ground there was a perpendicular face of cement but t'aat after the blast one could have walked up it. If you believe in the correctness of the plan, and the evidence by which it is supported, you must necessarily believe the evidence as to the immediate effect of the blast. How is that evidence supported by Mr. Mouat? He has sworn in the most positive manner that on examining the cement in the plaintiffs' ground, immediately after the blast, he saw no evidences of water there, but distinct fissures in the cement. Mr. Mouat was asked to distinguish between the two ; and he drew a clear, intelligent distinction. Putting the evidence together, it makes an unanswerable case ; and is it not supported by the defendants' evidence. We have the effect of the blast on their land afterwards ; we have the fact t hat a tunnel some 30ft. long gave way. Why did it give way 1 Was it not, as the plaintiffs contend, because the whole strata had been fractured by the blast in September. I say there is a strong probability that such was the ease, because if the ground was in the infirm and rotten condition it was, what more n itural than that it should give way ? There is the fact, and does it not prove conclusively that the blast, as suggested j by Mr. Mouat, \va* of an extremely extensive character ? Is it anything preposterous or absurd you are asked to believe ? Mr. Mouat himself tells \ us of the blast and its effects upon the strata. If you believe him on that point there is nothing at all inconsistent in the contention that the blast of October or November 1869 had the effects ascribed to it. As against the strong case made out on behalf of the plaintiffs, what is the evidence i we have rendered on behalf of the defendants ? First take Creswell. He told you he had been away from the Spur for twelve months, from October 1869 to October 1870, so that he was not on the ground when the blast was fired, and could not tell you of its immediate effects, and therefore could not tell you of the gradual change that had been going on daily, nor could he tell you the appearance or condition of the ground at the time of the landslip in March. The next witness is Uren. I don't know that his evidence is of great importance, even if it is possible that you can believe him to be worthy of belief. Is it possbile you can believe Messrs Cumraings, Connolley, and Bartley, and at the same time believe Uren ? It is utterly impossible you can. The most Creswick said was that the whole of the workings of the Spur would have some effect upon the plaintiffs' ground. He has not deposed, as the plaintiffs' witnesses have, to tie immediate effects of the blast; and inasmuch as he supports the theory, which I have ridiculed and endeavoured to show to be without foundation, you cannot believe the view submitted by him on the defendants' behalf. The next point on which the defendants have dwelt is the water race. Of course if you do not believe in the defence in regard to the first part of the case, it is highly improbable that you will believe in the second. I drew, attention just now to the shifting^ nature of that first part of the dej-V fence. In answer to Hales' assertedbelief on this point, you have the positive evidence of Messrs. Mouat, Morrison, and XJummings, who, one and all, swear that the race was not there until very recently. Is it not highly improbable that plaintiffs, in order to secure an iaconvenient and insignificant piece of ground, should have fixed a survey peg, where, in the ordinary course of things, it must have been washed away? The whole of the story is in fact improbable were you not impressed with the admission made by Hales. Hales retailed the conversation which took place between him-

self and Henderson, during the course of which Hales admitted that a small portion of the race was in the company's ground. Why should he make that admission, or any reference to it, if he had the right to take the race through the ground ? That admission, now denied by Hales, clearly goes to bear out the view that if any such right existed through the plaintiffs' ground, we heard of it for the first time yesterday. Assuming that you are with the plaintiffs on the other point, the only remaing question is that of damages. My learned friend asks you to scout the evidence of Mr. Adams — to scout it as being unworthy of belief, because founded on speculation. I admit it is fairly open to comment, but I admit mothing more. He is a perfectly disinterested witness ; in such cases rather more credit is assigned to the witness. If his calculations were unsupported by other evidence, I would at once admit his observations might be objected to ; but are they not supported by a considerable body of evidence. True, they are not actually supported, but his methodical calculations prove the exact quantity to be 28,000 cubic yards, Mr. Mouat swears to 3000 yards, Mr. Morrison to 2000 yards; therefore Mr. Adams's calculations were not idle ones. All the witnesses believed the soil went down upon defendants' land, and of this there cannot be the slightest doubt — that a very large quantity of soil was taken from plaintiffs ground. The defendants are disentitled to belief on this point. I do say that after the manner in - which the defendants' have behaved in improperly appropriating the soil to their own use they can not possibly claim credit at your hands. What would have been the natural course for them to have pursued? Why, to have called in some person to assess the value of the land, so that subsequently independent testimony could be called as to its value. But they say it was utterly valueless, indeed that they worked it at a considerable loss ; in short they want you to believe that by appropriating the soil they conferred a great benefit on the plaintiffs. And this is the way their calculation is worked out : For three months' operations they have a loss of about £160. Their working expenses during that period were £500, and they only obtained £330 worth of gold. Yet strange to say, while they lost theirs rapidly they now asked £5500 for their claim. But the defendants' testimony on this point, as I have already said, is not to be believed. Uren, although he denied it, is proved to have admitted to Cummings and Barclay that Hales was getting a lot of gold out of this very soil. The learned counsel concluded by contending that the conduct of the plaintiffs had been foi-e-bearing throughout, that the loss which they had sustained was large, and that the damages should be heavy and substantial. His Honour, in summing up, said It becomes my duty to lend you such assistance as I may be able to give upon the law involved in the case, which depends so much on the evidence which you have heard, and the points are so extremly few, and so simple, that I shall endeavour to compress my remarks in as brief space as possible. The action is brought upon three alleged wrongs. " The first count charges that the defendants have improperly mined upon their own land, so near to the land of the plaintiffs' as to leave that land without sufficient support. The law on the point is this — That, undoubtedly, every man has a right to use his own property. That is the first principle, but subject to this condition, that in using his own property he shall not so. use it as to do injury to others. Therefore, where there are two adjacent proprietors, whether they be miners or simply possessed of land from the Crown, each of these proprietors has against his neighbour respectively a right to lateral support from the other's land ; and therefore if one cuts down within his own boundary without trespassing at all, but so that the land of the other topples over on j his bit, as it were, the person whose land has fallen has a right of action, and a right of compensation for the damage done. The next count is presented to you in two aspects. First of all there is that little trespass, that is to say the breaking and entering upon the lands of the plaintiffs that was carrying their water through it. I assume for the present that they have the right -to carry the water race ; that nevertheless they carried it rather more to the southward than they had a right to do, and thereby encroached on the plaintiffs' land- Now, if this action had stood upon this fact alone, and it were .proved to the satisfaction of the jury, it would entitle the plaintiffs to a yerdict, although the damages might be .merely nominal. But in the same count it is carried a little further. Not only is tresspass alleged, but also that by the action of the water coming down the race, a considerable portion of soil of the plaintiffs' -was washed down into the claim of fche defendants, and when so washed down was wrongfully appropriated by the defendants to their own use, so that you will observe, according to the declaration, the cause of the washing down of the Boil — if you are of opinion that it was washed down — was, first, the improper mining below of defendants, whereby the plaintiffs' land was left without sufficient support, and the surface soil toppled over, this operation being accelerated by ...the

action of the water above. By the mining operations below and the action of the water above, it is alleged a con- » siderable portion of soil was toppled over and was then used by the defendants. In answer to that, the case set up is this, that long before these causes of action arose, the ground was in an insecure state ; that in 1865 or 1866, one M'Nab entered upon a portion of the land now occupied by plaintiffs — rightfully we may presume — and constructed a dam there ; but even before he had constructed this dam it bad been observed by two of the witnesses that the soil below the dam, somewhere about where section 8 is marked, had a fissure; and was shaky, and was gradually but slowly, and in a trifling degree, subsiding; that after that these slidings of the land were increased, first, by the operation of a race that proceeded out of M'Nab's dam ; and ' secondly, by the operation of another race that came from another direction, which was cvt — both these descending towards M'Nab's own land. It is said that by the operation of this dam and of these two races, the whole of the soil of that part of the Spur was so loosened that it had a tendency to fall. It is not said that it did not actually fall ; but it was rendered shaky and had a tendency to fall ; and being in this condition, its final fall over the precipice, between 45 and 95, was accelerated by two other circumstances. First of all, it is said that M'Nab himself put in an extremely large blast somewhere about midway between link 700 and peg 49, the effect of which was to disturb the soil on that side of the boundary line; and secondly, it is stated — and this came out rather unexpectedly from some of the witnesses — that one night in the month of March, 1870, some person or persons maliciously cut M'Nab's races (a fact which M'Nab has not meutioned), and that by the destruction of these races, which is in itself an offence at law, the whole ground was flooded or swamped, and thereby became more liable to fall over the rock or precipice. Evidence has been given to show, and that evidence is attempted by the defendants to be strengthened by all the witnesses saying that they do not believe that the blast fired by defendants in September, 1869, had the effect imputed to it, and that their workings were fit and proper for the nature of the ground. The defence is therefore that it is partly by M'Nab's operations above the line of the plaintiffs' ground, partly by the defendants' ground below the line of the plaintiffs' ground, and partly by the malicious action of some person or persons unknown, the whole of this effect was produced, and that the defendants are entirely innocent of it. It will be for you to determine that upon the evidence. I have only to make a short recapitulation of the case for the plaintiffs and for the defendants, in order that you may know what the law would be in such a case. The law is so obvious to you that it is scarcely necessary for me to instruct you on the subject. If in your opinion this toppling over into the claim of the defendants was wholly and solely caused by the operations of M'Nab, who, it appears compensated the plaintiffs for the injuries he had done, or whether it was the result of the malicious acts referred to, or to the combined result of M'Nab's race and blast, an! that malicious act — that it was solely caused by these, and was not attributable at all to the workings of the defendants, they will, of course, be entitled to your verdict. It is of little or no effect if you think that the defendants did, as imputed to them, mine too near the plaintiffs' ground, for it will be well to tell you that the law does not prescribe the exact number of feet or inches up to which one person may take the soil adjacent to his neighbour's boundary. If you think the injury was attributable wholly and solely to the action of the defendants, then, of course, the plaintiffs will be entitled to your verdict. But there is another condition of the case, which it is competent for you to look to, and arrive at a conclusion. You may be of the opinion that all these cases generally produced the effect— you may be of the opinion that M'Nab was somewhat to blame that his mining operations contributed to the final result — you may take the evidence of the witness that the cutting of the water race by some malicious person also contributed to it ; or you may think that the evidence of the defendants contributed to it. This is not like a matter of contract. In a matter of contract, of course all parties are equally liable ; and if the plaintiff chooses to discharge one of the co-contractors from liability, he discharges the whole. In torts or wrongs, where one or more wrongs are committed by several persons, each and every one of them is individually liable to an action ; and it is quite competent for the plaintiffs to seek compensation from the present defendants for any wrong they have committed, although other persons, who are not before the Court, may have committed wrong» against them. If, therefore, you should come to the conclusion that the defendants have been guilty of wrongs in so conducting their mining operations by carrying them too near thg point, or wall of rock, which constitutes the plaintiffs' boundary, so as to endanger the toppling over of the soil, their liability to pay compensation for that wrong is not to be relieved, because some other persons bad also been guilty of

the wrong. But you may take that fact>nto consideration in considering \ the question of damages. T.ie t-vi-' deuce of ..the plaintiffs' witnesses is pretty uniform, as was also that of the defendants. You will have to go carefully over that evidence in your own minds, in order to arrive at a right conclusion. It is not necessary that I should read the whole evidence over to you — it extends over 180 pages of my notes — because it is undoubtedly fresh in \ your recollection. The first witness was Edward Croker, who merely testified to the correctness of the certificate of regulations of the Company. You may assume the first issue, for there is no dispute about it, and answer it in the affirmative. You may also answer the second issue in the affirmative, for there was no evidence against it. Your attention may really be confined to the evidence as to the cause of the toppling over of the soil. The first witness called is a witness of considerable importance - —Charles Adams, who is a surveyor, in the employ of the Government, and apparently a person of experience. He produced a plan, copies and tracings of which are placed in your hands, and upon them the whole of the witnesses were examined, and the whole of the observations of counsels have been founded. These plans come before you with, a character for accuracy. Mr. Adams was examined, and described the manner in which they were prepared. They were prepared from the best information procurable — in actual knowledge of the ground itself. You will see this from these plans : that in those features of the ground which have a red colour the figures are the results of actual measurement, those which are the result of calculation or estimation are coloured black. It is to be presumed in the first instance that a surveyor will make a plan as accurately as possible — the mere instinct of duty would induce him to make the plan as accurate as the information at his command would allow. A plan of this description comes before the jury with a character which entitles it to confidence, unless it is shown to be inaccurate. In the evidence it is attempted to be shown thaf it is inaccurate ; but ' it is not the sort of evidence which a jni'y should accept in such a case. Where one skilled person gives evidence upon a matter purely of science or connected with his own profession, the proper course, if the accui'aey of his evidence is questioned, would be to produce equally skilled authority who ■would tell their story and point out their reasons why the plan was inaccurate. This has not been done here. All * that has been done is that some of the parties interested in the interest have pointed out that the plan is inaccurate. There has been a qviestion raised as to the position of peg 75, and 13 to the position of 21, which, as I pointed out at the time, does not, so far as I can see, have much effect upon the case. Still, as affecting the general accuracy of the plan, one unaccuracy tends to throw doubt on the other parts not questioned. Why was the accuracy of the plan questioned ? Because according to the plan that peg 21 was not near enough to the road. When Mr. Adams was in the witness box, he ex- ' plained that the blue mark running diagonally through the "whole of the original plan was never intended to represent a road. All the "roads are laid down in a sort of brown colour. What was intended to be called a road was a supposed reserve for the purpose of water supply. So that objection brokedown. However, gentlemen, you have heard the evidence of several witnesses as to the plan ; and it is for you to say whether it has your confidence or not, and how far your confidence in it is shaken by the evidence. What you have to determine by it are — first of all, the position and extent of the landslips ; secondly, the positiou of the several blasts ; and thirdly, arising" out of that the distance to which the defendants' party mined in approaching the plaintiffs' ground. What is the evidence upon that point ? If you assume that the straight line from 49 to 75, according to the plan, is the correct boundary between the plaintiffs' land, then the line marked at the bottom of the face indicates the point to which the defendants mined, and the line, marked at the top of the face, indicates the extent of the peg where the land began to topple over. You will find that the distance is about ' the third of a chain. You can measure the exact distance which the surveyor makes from the lower part of the face from a horizontal line, forming the plaintiffs' boundary. The defendants' answer to this is that the blast of September or October, 1869, to which the mischief is imputed, wa3 put in not far from peg 76. If the drive went fifty feet from it and went in fifty feet, the chambers, in which a large quantity of powder was deposited, should have been somewhere about 76. Where it was let off, according to one of the witnesses, it did not approach the face in that direction more than fourteen or fifteen foet. There is a question which you should take into consideration — and I made the observation at tftfie tine — fourteen or fifteen feet in Krhat .direction ? If a person started fram peg 76. and, walking in a straight Utfe, insensibly turned his shoulder, a lilitte to the "right, he -would come upon the face almost immediately — that is about two chains from '■ the plaintiffs' boundary, But if be proceeds along a

straight line, and inclines a little to tho left, he would proceed nearer, or very near to the surveyor's line; and by suh ca trifling circumstance may the evidence of the witnesses be determined. Another thing which serve* as a test of the correctness of the plan is this : that all the witnesses say that measuring 600 links from peg 50, it was on that line they came upon defendants' land — that is to say, it was there they came upon the face of the solid rock or wall of cement. The evidence is clear, therefore, on this pomt — at all events that the defendants' workings did not approach nearer than one chain. It is for you to judge of the distance of defendants' workings; aad it is for you to say whether it was a chain, half a chain, or ten feet. The plaintiffs' case is not that the defendants have mined up to a certain distance, leaving only so many inches or yards ; they do not tie themselves down at all ; nor is it possible to tie down either party to an exact measurement on the point, because the law does not do so, in saying that each shall leave to the other's land a sufficient lateral support. If you consider 10 feet sufficient, then it is enough; tLat will be determined in a great measure by the nature of the ground. It would be for the jury to consider what would be a reasonable blast, considering the nature of the ground. Now as to the effect of the water race. It seems certain now that a little corner of the defendants' race runs across the plaintiffs' boundary. Had the case rested entirely upon that, a case might have been brought to try a right, and a nominal verdict given for the plaiutiffs. But this matter has a very important bearing when you come to consider the nature of the soil, and the effect of a large jet of water upon it. The race running through the plaintiffs' land would wash down the very best soil, which was the properly of the plaintiffs and not the defendants. In order to make the washings down the property of the latter, clearly the race should bo within their own ground. As to the matter o' right, the jury may possibly come to the conclusion that they had a prior right to carry the race over land, which afterwards become the plaintiffs ; but still they mu.t use that right to carry water in sucli a way as not to injure the soil of the plaintiffs. The evidence as to the priority of risht is this : that long before the plaintiffs came there, the defendants had a claim to carry a water race through land which was then unoccupied land of the Crown ; that some years afterwards they took up a new claim in the neighbourhood. If the jury thought that the defendants, when they originally exercised that right, carried that race through that corner of the land, the race must be protected ; but if, iii the exercise of it, they diverted the race to save that corner after the plaintiffs came into possession, then it was a trespass and enc-oachment. Ou this point there is a good deal of eonflictory testimony. The defendants say that in the proper exercise of their rights to do so they carried the race down, and the only alterations to which it has been subject are just ordinary washings away of the soil which are inevitable in such a case ; whereas the rebutting evidence and that of the other witnesses called this morning is to the effect that when the plaintiffs first came upon thsir ground the race which now comes through their land passed through the whole of the defendants' land, and did not encroach upon their land at all, so that the encroachment has been made subsequently. But the most important is — first of all you have to consider what is the effect of this water race ; and after that, what is its effect combined with the effect of the rear workings of the defendants ; so as to entitle you to determine what caused the toppling over of +he soil. One witness, I think it is Ralston, says that after the great blast in September, 1869 the surface wall was so altered that any person might w .Ik up it. I think a question was asked Hinde, and he said it was undoubtedly so, even in their own gronnd. So that the question resolved itself after all into the mvin one, whether the soil which toppled over, which formed part of the wall up which no man could walk prior to the blast, was the soil of the plaintiffs or the soil of the defendants. There is, however, the admission of the defendants that from the very nature of the soil a small portion of the surface soil may have toppled over, but any such portion was insignificant. There is one safe piece of evidence as to the proximity of the workings. It seems there was another blast let off in 1870, which was inoperative. But in one part of Air. Hales' evidence be says they may have pushed their workings about 20 links further ; sc that the nearest admission •, on the part of the defendants is this : they may have worked within 80 links of the plaintiffs' boundaries, but they certainly never worked nearer. Now, whether you think it is 100 or 80 links,. it is for you to determine whether it is the true state of the case or not. It is, however, inconsistent- with the appearance of the plan. But although the plan is constructed by an undoubtedly skilful person — probably constructed with all that care and skill the person is capable of giving it — it is not binding on the minds of the jury, who are entitled to have it questioned and examined by the evidence of witnesses mosb interested, in showing that it is fallacious, and are quite entitled to

believe the evidence in preference to it, if they think propor. Coming to the question of damages, tUe jury will find some difficulty in estimating the quantity of soil which it is alleged fell into the defend.-iuts' ground, and its value. There are, no doubt, modes of measuring earth, but these have not been resorted to. The estimates are varied — Mr. Mouat's ranges, from 30,000 cubic yards; Mr. Cummings', from 16 to 20 or 21,000 yards; and the survey estimate is 20,000 yards. One or two other witnesses also estimate the quantity at 20,000 yards. One witness — I am speaking of the plaintiffs' witnesses — brought it down as low as 16,000 yards. Against that the evidence of the defendants and their witnesses is that the quantity was merely trifling. First of all they deny that any quantity of soil was brought in consequence of their workings ; and assuming that a quantity was brought down, it was insignificant, and of no value. According to the defendants' account, the soil that came down was that portion of the soil least valuable ; they had a washing up of similar soil, which produced gold of the value of £350, but it cost on water and labour £500, so that they were actually losers. I think it is pretty obvious to persons acquainted with mining that a hill like the Spur is never fouud to be so highly auriferous towards the surface as it is lower down. On the other hand, taking the whole mass of earth, it is variously estimated, on behalf of the plaintiffs, at 2s M per cubic yard. That appears to be the greatest value, 2s being the gross value ; and coming to later calculations, we find that, after deducting the costs of water and labour, and other trifling expenses, that it will yield something like Is per yard. Ido not know that it is necessary that I should read over the evidence. I always think that reading over the evideuce which the jury has heard, has a tendency rather to impair its effect upon their minds than otherwise. You have it fresh from the lips of the witnesses, and the witnesses were marshalled in such a way as to give their evidence in such consecutive order as to make you understand and recollect it. I therefore conclude as I began, by telling you that if you are of opinion that the toppling over of the soil was entirely caused by operations over which the defendants had no control, your verdict must be for the defendants ; but if you think their approaching too near the plaintiffs' ground was the cause, then the plaintiffs are entitled to such damages as you may give them. If you think it was partly in consequence of the defendants' workings, considerably affected by the fault of others, or by the acts of some malicious persons, they are still entitled to your verdict for the wrongs done them. Yet it is a question the jury should take into consideration in measuring the quantum of damages, what damage they sustained through a portion of the earth falling into M'Nab's claim. Mr. Macassey pointed out that his Honour had misquoted Mr. Adams' testimony as to the quantity of earth which fell into defendants' claim. Mr. Adams had said it was about 82,000 cubic yards. The jury then retired, and after two hours had elapsed, sent in a message to his Honour, asking if a verdict of tbreefourths of their number would be accepted. His Honour expressed his willingness to accept it, if the parties concerned would do so. Mr. Macassey assented ; but Mr. Smith declined to take such a verdict ; and the jury consequently had to renew their deliberations. Ultimately they were locked up for the night, and being unable to agree, were discharged at 10 o'clock on Sunday morning. On the following Monday, before the regular business of the day commenced, Mr. Macassey (for the plaintiffs) asked his Honour to fix a day for proceeding with a new trial. After some deliberation, his Honour promised to set down the case for trial at the June sittings.