THE COURTS.

Tuapeka Times, Volume V, Issue 222, 2 May 1872, Page 7

THE COURTS.

RESIDENT MAGISTRATE'S COURT, LAWKENCE.

(Before VHncent Pyke, Esq., R.M.) Monday, 29th Apeil. M'Bae v. Drapper. — Mr Copland appeared for plaintiff. This was a claim to recover £2 10s for paddock accommodation. Defendant denied having given directions to paddock the. horse, but had assisted the owner to drive the horse to the paddock. Judgment for plaintiff for £1 7s. Coivap v. Graham and Morrison. — Claim £4 11s, for goods supplied. Verdict for amount, with costs. Mr. M'Coy appeared for plaintiff. Lidgerwool v. .Heaps.— Claim £3 103. The sum of £2 10s was paid into Court, and accepted by plaintiff. Monaylian v. Morrison. Claim £2 ss. No appearance of defendant. Verdict for amount, with costs. Michael v. Keppel.— Claim £10, for damages done by defendant's pigs to plaintiff's paddook. Defendant asked that the case be dismissed, on the ground that neither the particulars not date were given in the bill served on him. The bench remarked that defendant was entitled to full particulars, so that he might know what he was charged with, and adjourned the case for a week, plaintiffin the meantime to amend his bill, and to pay 10s cysts. Treloar v. Fitzgerald. — Claim for £6, damages done by defendant's cattle to .plaintiff's crops Mr. Copland appeared for plaintiff, and Mr, Gooday for defendant. Plaintiffs son and Joseph Gibb deposed to seeing defendant's cow in plaintiffs paddock on the sth April, and his bull on the 6th April, and these animals destroyed a quantity of turnips, which the first witness valued at L 6. Thos. Tyjer stated that he visited the ground, and estimated the damage done at L 6. Mr. M'Coy moved for a non-suit,' on th& ground that the ownership of the cattle had not been proved, and this being overruled, on the ground that Treloar^ having laid damages when impounding, debarred himself from the right to bring an action for the same damages. He mentioned that Mr. Strode had recently decided that this could not be done, and produced the " iJaily Times " which contained the decision. Mr. Copland contended that Mr. Strode, having only concurrent j 'u-isdicti- >n, should not be quoted as an authority ; and also thought that newspaper reports were unreliable. Mr. M'Coy then quoted the Impounding Ordinance of 1872, and also some common law maxims to the effect that a person could not be twice -attacked for tho same offence. •

His Worship said that the plaintiff had availed himself of the remedy provided by the Impounding Ordinance, by impounding the cattle and claiming damages for the tresspass. Clearly he ould not now come to the Court and ask for special damages for the same trespass ; for by electing to impound, he barred any claim he might otherwise have had under hi* common law right. 'As to thejallegation i that he had not received the amount of

his claim from the poundkeeper, was a matter not now before the Court. Plaintiff non-suited, with costs of Court.

WARDEN'S COURT, LAWRENCE.

(Before Vincent P\ke, Esq., Warden.) Wednesday, 24th April The following is Mr. Warden Pyke'a judgment in the case of Silk and party v. Coxon and party, which was held over from our last issue :— The Warden said the facts in this case, as elicited by the evidence, are briefly these : Plaintiffs and defendants are the holders t>f adjoining claims, and defendant's head race passed through plaintiff's ground. It is alleged that the leakage from their race has destroyed a tunnel in plaintiff's claim and caused other damage, for which injuries plaintiffs' claim the sum of £12. On behalf of defendants, several nice points of law have been argued, which I will now proceed to deal with. And, first, as to the necessity of making application under the 18th Regulation, for permission to work ground by tunnelling : I said during the hearing that the Regulation only comprehended suck workings &s were altogether carried on by tunnelling ; and, if the Ist sceiian is carefully read, it will be at once apparent that this is the correct interpretation. The words are any person desiring to make a tunnel as an approach to his claim, not 'in. his claim, and the objectisto prevent adjoining claim holders from interfering with the approaches to each other's claims. It would be monstrous to constru the Regulation as meaning that a man could not work within his claim in any manner he thonght fit. * Then as to priority of right, the priority in this case is undoubtedly with the plaintiffs ; although occupancy of the 4 acre claim only dates November, 1870, the original olairu wa3 taken up under a certificate dated 17th March, 1865, and their original claim afterwards, uuder more liberal regulations, became incorporated in the present claim. Defendants only acquired • a right to their race in March, 1866 ; and one witness testified that the race was conducted through the ground then occupied by the representatives of the present plaintiffs at that time. This then disposes of the question of priority. Now, as to the effectual marking of plaintiffs' claim, upon which great stre&a had been laid : I have looked into the case of- Harris v. Labes, to which rererence has been made ; • and also into the case of Dyer v. Higgins, and I have arrived at the conclusion that those cases have no bearing whatever on the case no «v before the Court. Harris '\ l^abds was a suit instituted to recov rdamages for encroachment, and the defence was that the ground was insufficiently marked, and also unmarked. His Honor Judge Gray in giving judgment said, referring to section 1, Reg. If., "There might be some doubt as to the weight of the obligation imposed by the latter part oi the section, and as to the consequence of disobeying it, but at the least, it imposed on the owner of the claim a duty of some degree of obligation to keep up the boundary marks, and whatever consequences came from their omitting to do so must fall upon themselves, and could not be cast upon persons who were misled by their neglect," with which I thoroughly concur. But there is no contention here that the defendants were misled by the plaintiffs' neglect, nor that the damage complained of was caused by. any such neglect. Dyer's case is still more remote from the case now under review. In that, case the contention was as to ownership of certain ground. It was held that the ground had never been the property of defendants, in term of sec. 1, Reg. li. But the present b not a suit for the possession of a claim ; and it has not a single feature in common with the case refeired to. ' Having thus cleared the ground of the legal points raised, I now revert to the facts as disclosed : That the defendants have a right to conduct their water by the race which cross the plaintiffs 1 claim is not disputed. But it is a wellknown maxim that every one must so use that which is his own as not v to injure the property or detrimentally affect the rights of his neighboiu ; and it was. and is the bounden duty of the defendants to prevent the race from leaking into plaintiffs' claim, more especially as the prior right is with the latter. If complainants' evidence is to bs relied upon, the, sum 6i £12 does not nearly represent the damages sustained, and this has not been contradicted . However, the action seems to have been brought more with a view to restrain defendants from continuing the injury than for the sake of the money, and this end will be gained by comparatively nominal dam ages, Judgment for plaintiffs, £5 ; costs of Court. 14s ; professional, 21s,

WARDEN'S COURT, WAITAHUNA,

(Before Vincent Pyke, Esq., Warden.) Moneay, 29th April.

Be. the application of Franz Julius to divert water, for mining purposes, from the North branch of the Tckomairiro river, — The Warden, gave judgment in this case as follows : — Having duly considered the evidence presented touching this application, f can arrive at no oth-.r-conclusion than that I otight not to grant it. There is not sufficient proof of the existence of payable auriferous ground in the locality. I noticed that, beyond tha speculative statements of the. witness Black, who is himself an interested party (btsing an applicant); no effort • was made to show that the mining interest generally would be benefited by the issqe of the grant. The umly evidence direct to the point was given by Butler, who, in reply to a question from the. Warden, stated that he had tried a few dishes of earth, and he obtained a strong colour. On the other hand, it is urged that very injurious results to the settlers, landholders, agriculturists, aud to sundry local industries, would inevitably occur from the diversion and pollution of the water. lam therefore a3ked to confer on the applicant that which at the best is only a problematical benefit, whilst in so | doing I should incur the risk of inflicting many positive injuries on the riparian proprietors in the vicinity, who " have a general ri^ht to receive the water in a3 pure a atate as nature afforded them.au>l I wirhont diminution, diversion, or detriI msnt."— (Bambridge on Miners, Sec. 3.) j Tub application is therefore refused, as is I alst> the application of William B'aek, for ! a second and similar diversion of th» 1 North Braugh.

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