WEDNESDAY, 15th Nov.

Tuapeka Times, Volume III, Issue 199, 23 November 1871, Page 5

WEDNESDAY, 15th Nov.

Casey Bros. v. Morrison and party, damages, £300 ; and Casey Bros. v. Nicoll and party, damages £300. In this 'case the plaintiffs are owners of a two acre claim, and a tail race, duly registered, at the head of Gabriels Gully, aud they complained that by and through the tailings sent into the gully by the defendants, that the water is thrown back, and has encroached upon their tail race, thereby materially interfering with the profitable working of their claim, and consequently seek to recover the abovenamed damages. Mr. M'Coy for plaintiffs, — defendants appeared in person.

It was agreed between the parties both cases should be conjoined, so as to, Bave time in the repetition of evidence.'

James Casey, being sworn, deposed — Hqjder qf. a miners', right. Brother and. .myself ~hold the claim (certificate produced.) Constructed a tail race (certifi-

cate produced.) Said tail race encroached upon foß.a distance of 48 feet by water — caused by defendants. Cannot work our claim to advantage in consequence. As yet the other Spur parties have not contributed to cause this damage. On the 30th October a cow was drowned in the lagoon formed by defendants' tailings, and at the end of our tail race. Satisfied that the defendants alone have done the whole damage. (Gold Teceipts produced showing a total yield of gold, since 1868, of some 1700z5., and some fine specimens, one weighing 2ozs. and ldwt.) In march, 1870, refused £120 for a fourth share, and the claim was, if anything, improving ever since, but for our inability to work it. It is within the last month that this encroachment took place. The claim is not destroyed, but depreciated in value in consequence of defendants' acts.

Cross-examined by Morison — Our tailrace was damaged about one month ago. Know this because our tailings were not carried away as usual. Have only one claim. Same as described in certificate. 'It is situated at and around O'Leary's residence, and towards Spiers' garden. When application was made for the race, placed only one notice on upper part in Robinson's garden. Constructed 290 feet of said race. This space has been shortened by 48 feet, the length of your encroachment. There was no back water there in January 1870. When race was applied for, valued the claim at £600. Was offered £100 for a fourth share. The claim is about 40 feet Seep— about onethird only worked. The claim, if anything, is inclining upwards. Last washing about a month ago. Cannot tell the amount of gold got. Thought the receipt was amongst those produced. Did not work very constaut. Some days altogether idle. Might work on an average half time, or perhaps a little more.

John and Dennia Oaaey (brothers of the tirst witness) were examined, and substantially corroborated the above evidence.

The Court, however, had some difficulty in finding out the amount of last washing, said to have been done about a month ago, the previous one being in May. At last it came out from last witness, Dennis (who is no shareholder) that the amount was about 120a5., showing that for five months somewhere about £45 worth was taken out of the claim.

Reuben Hill, being called, deposed — That in March, 1870, he had offered first £100 for a forth share in Casey's claim, and subsequently £120, but refused. He would now give £30 for the share, but not for the value of the claim, but as a spec, trusting that he would be remunerated by the damages obtained from defendants. * Were the claim in the same condition as regards the tail race now v as it was in March, 1870, he would give £400, provided that he could get 300 inches of water, for £4 per week. He considered that the other shareholders on the Spur were equally guilty with defendants in occasioning the damage now sued for.

William- Mears, being called, deposed to the effect that the damage done was entiiely attributable to the acts of the defendants. The other claim holders might assist, but not to any appreciable extent. He gave it as his opinion that by a little expense the defendants might easily discharge their tailings so as to avoid doing any injury to any one.

The Warden having visited the ground, as desired by defendants, the evidence for the defence was gone on with.

Mr. M'Coy, on_ behalf of the plaintiffs, stated that his clients would be satisfied if the defendants would compensate them for the loss of time and expenses incurred (the previous night's rain having made a channel and left the tail race clear). The defendants refused. At this stage of the proceedings Mr. Gooday appeared for the defendants. Mr. Morrison deposed that in the year 1869 he applied for a tail race. Posted notices along the course of the race, and gave notice to the neighbouring claimholders, as required by the regulations. Certificate was granted (produced). The course of this race went across the gully. His company had purchased from Paddy the Miner a piece of ground on which to deposit their tailings some eight years ago. Always had a right since to deposit their tailings.

Mr. Cormack confirmed the evidence of the previous witness, and stated that he had seen the plaintiffs' claim that day.

The Warden stated that floods were the best wardens, as they disposed of his difficulties. He had found the Molyneux settle many a difficulty.

Witness continued — The race of plaintiffs' had plenty of fall, and if they had not enough it was their own fault in their mode of working. The fall in a lensfth of nine boxes (108 ft.) was Bft. 10^-in. The race had more than the average fall, and could be worked with one-half the present fall. Examined the claim. Saw a large cavity or hole, but his opinion was that it had been sunk by plaintiffs to gather the water. It had all the appearance "of a well. From one-half to twothirds of the claim is worked. • Both ends of the claim had been worked. Knew one John M 'Donald ; he was starved out of the claim. The value of 40D inches of water would be L2B per week. If they had the water fer nothing, it was his belief that it woulu not pay. Decision deferred.