THE COURTS.

Tuapeka Times, Volume V, Issue 263, 13 February 1873, Page 5

THE COURTS.

SUPREME COURT, LAWRENCE. (Before His Honor Mr. Justice Ohqpman and-a special jury.) TcrESfIAY, February 11, The adjourned sittings of the Sujpreme Court commenced on Tuesday, the llth inst. His Honor took his seat at 11 a.m. Clayton and Others v. Morrison and Otters. Mr. Macasaey and Mr. Mouat appeared for plaintiffs ; Mr. Barton and Mr. Chapman for defendants. The following special jury wa& empannelled : — Andrew Ferguson (foreman), J. Ritchie, W. Sh,eath, Joseph Ferris, J,ames Chalmers, Sydney Wilson, Thomas Barnett, James Mooneye John Bulfin. William Hope Midler, Richard Williams, James Robertson The plaintiffs' declaration stated the possession of a gold mining claim on the "Blue Spur, known aa section block XVITI, Tuapeka East ; that the. defendants at divers days and times wrongfully removed rock, earth, and soil contiguous and near to the said parcel of land of plaintiffs, and caused the same to lag. and. remain without any reasonable and sufficient support, whereby the same cracked and slipped dawn. A second count alleged the continuance of defendants wrongful operations. The third count alleges that defendante, at divers dj&J^and times, wrongfully and without, the license of plaintiffs took away, removed, and converted to th.eir own use a large qiiantity of auriferous earth aud ;»old, the property of plaintiffs. Wherefore the plaintiffs claim to recover frjm the defendants the sum of £6000 ; aud the plavfttifi^ also, claim avirit of injunction to,restrain defendants from a continuance and repetition of the injuries, cnmpl-iined of, and a committal of other injuries of a like kind relating to the same rights. Defendants pleaded a general denial of plaintiffs' allegations ; and also for a further plea to tlie firs£ and seqond counts, " tjiat at the tinj.es when the defendants are ajleged v to, have committed the grievances, complained of, in the. first- and second counts of the declaration, the plaintiffs so carelessly, negligently, and improperly mined in and upon th,eir gold mining claim, that by reason thereof, and without any default or wrong of the defendants, the said inju-xiea complained of were caused ;. and as the deiendants §ay the said injuries, ia the said counts mentioned, were caused and occasioned by saii negligent, careless, and improper mining of the plaintiffs, and not by :.ny _, fanlt of the defendants, which ai-e the supposed trespassers in the declaration Mentioned.'' Issue was joined on aty the material facts. Mr. Barton, said' as this was likely to be. a lung case, it was proposed, to offer more remuneration than the law allowed to the jury* Both parties had agreed to this course. His Honor sai<J, he. coujLd npj; sanction such an arrangement, but would offer no objection to i'ta. being carried ont. He referred to the TiohboFne case, in which suph an arrangement was made ; and recommended that the parties should see that it w,aa. executed- and noileft exesutry, as in the latter case it could not be legally enforced. Mr. Macassey mentioned that the special ]uvy was obtained at the instance of defendants, and expressed his concurrence in the course proposed, citing the case of Anderson v. Burke in Ppnedin, gnd. Hugh GJaas' case in Victoria. Mr. Barton asked that two new issues should be added to the record. The declaration averred negligence, but the question of negligence was not raised by any of the issues. Mr. Macassey offered no objection, proceeding on the assumption thai the case of. Humphries v Brogden would be accepted as authoritative. It was followed by the learned judge in the case of the Great Extended v. Hales. He suggested that Mr. Barton, should dra£t the issues he proposed to insert,, Mr. Mouat opened plaintiffs case by stating the pleadings. Mr. Macassey said the. declaration disclosed 3, separate causes of aption. The first was founded on the recognised principle that a miner, in the exercise of those rights conferred upon him,, by the .legislature, was bound by the same principles of law -that regulated the rights of- freeholders. He : cited" the Riling of the learned Judge Qn the case of- the Great Extended Company ti. Hales, to, show that those principles applied.. The first count alleged that defendants.hftd by their operations intefered with the rights of lateral support to which the plaintiffs were entitled. The second count alleged prospective damages. It was not his intention to auk the jury to assess damages under the second count, aa it wjis laid down ra'H'Qmphries v. Brogdeu that plaintiffs were entitled to recojver perspective. damage? undtft the first count. The third count alleges that defendants possessed themstlv«s of a large quantity of auriferous %jsjth. tlje property of plaintiff. They

sought, in addition to recovering damages under the first count for injuries already done, to recover the value of the auriferous, earth wrongfully converted by defendants under the third, count. It would atill be their duty to consider chat the plaintiffs claim was rendered less ntable, Jess workable, and consequently less valuable by the operations of defendants. He first directed the attention of the jury to the quest^qn of the boundaries of the respective claims. As this was a cardinal point in th,e case, they must well satisfy themselves upon it. Having done this, their task would he. comparatively easy. Th,e learned gentleman alluded to the importance of Clayton's evidence, as being formerly- a member of both plainciffs and defendants companies, he was able to speak to the boundaries more accurately than the other witnesses. He proceeded to state that in November, 1871, Morrison arranged for the purohase of the claim of Speirs & Co., w,hich adjoined that of plaintiffs. Mr. Adams then made a survery, which was submitted to Government for the purpose of obtaining a new lease. This survey was accepted as final, and the boundaries laid down by it acc.ep.ted by Morr\sqn, who obtained a lease for the ground included within them. The jury would have to satisfy themselves as to the identity of this particular claim. They must take into consideration the material allegations as to. the injury done I ty the plaintiffs' claim by the operations of defendants. It was asserted that in February, 1871, owing to. a blast of great po.wer fired by defendants, the plaintiff's ground cracked and became loope, and a quantity of auriferous earth fell into defendant's workings, aud was appropriated by them. In 18681, Morrison & Co. so interfered with plaintiff's claim by blasting, that an agreement was entered into between them, whereby the earth brought down was. washed, and the proceeds equally divided. This small circumstance showed the disregard for their neighbors defendants entertained. Tke effects of the blast of 3871 were plainly visible two days after it was fire.d. The learned counsel laere referred to the disappearance of a peg numbered 12 on the plan, and the steps taken by plaintiffs to preserve evidence of its position ; also to the businesa inter views which had taken place between the parties with a view to a settlement of the matter. It was not at all denied by defendants, that gro\iud belonging to plaintiffs had been washed by them, but they alleged it was accidental, and expressed their willingness to pay for any damage they had occasioned. An understanding was arrived at that defendants' operations should be suspended.. They were suspended for a time, but in the early part of 1 872 were resumed, in consequence of which, plaintiffs' claim rapidly subsided^ Various proposals were made at repeated interi views, but defendants' operations continued, until they w,ere stopped by a writ of injunction from the Court. He alluded to the measures taken by plaintiffs to ascertain the damage they had suffered, and the necessarily speculative nature of the evidence procurable on points of this nature. The damage claimed, £6000, was a very gross underestimate. He directed the attention of the jury to the law ou the subject of the ■ measure of damages in actions of this nature, and pointed out that the plaintiffs were entitled to claim the gross .value of the minerals converted, without deducting the working expenses in procuring them. He. citad Sedgwick on Damages in support of this principle. Mr. Mac%ssey conclude I by statiug that if the jury were satisfied that the defendants had knowingly caused the injury alleged they had the power to award exemplary damages ; if, on the. other hand, the jury should be of opinion that the acts complained of were involuntary, it -was in their discretion to mitigate the amount awarded. The following evidence was given :—: — Henry Carey Clayton, miner, one of the plaintiffs, stated : I came to the district in 1861^ and, with the exception of 10 months, in 1862 during which I was in \ British Columbia, I \\&%q ever since resided at the Blue Spur. I know the claim held Iby Morrison and Co. I was a partner i*i lit from 1863- to 1868. Their, lease (produced) was dated 28th January, 1866. Previous to that time the ground was held as an ordinary claim, under miners' rights. J assisted to peg off,- both plaintiffs' and defendants' claims. I have, since I entered, been constantly in partnership with the plaintiffs. (A, tracing of Mr. Adams'- p]an was here produced.) The plaintiffs' claim was marked off the usual way, with four pegs. ! [His Honor, here ask^ed for a- copy of the plan, and directed the jury to be supplied with copies.] Examination continued : Peg 16, at the.lower end o£the Perseverance claim, is one of the original ones placed by me in March, 1864^ It remained till February, 1871, without, to my knowledge, changing its position. During the seven years I saw it repeatedly. In February, 1871, there was a blast fired by defendants, after which the peg began to move. At the junction of- the claim of 1 ' the Perseverance Co. and the Great Extended Co. there was a peg, which I saw up to 1868. There was a peg at Boa., between the Perseverance Co.'s claim and Morrison, and Co.'s, which disappeared through the-.ope-rations of the Perseverance Co* The other pegs disappeared through the workings of the Spur. In 1667 a sum of money was. paid, by Morrison and C'>. "to the Perseverance Co. to enable defendants to work a lower level of their claim. (Memorandum of agreement •referring to. the payment produced. It set forth that in consequence of a large quantity of earth belonging to the Perseverance Co. having slipped into Morrison and Co.'s claim, the two parties entered- into partnership in- the said earth, each to pay half the cost of"w,ashing it and to receiv.e half the profits. It was dated 4th April 1868,,] Previous to that agreement, defendants put in a blast which caused the ground to come into jjheir olaim v Between peg 85a and No. 3", the ground fell in on, the- feasterly side., of the Perseverance claim. The Perseverance Co- received in pursuance of -the aggreement i&00« Mr, Adams made, a survey of plaintiffs' claim. No. 16 peg was then standing-. lTi : Feb. JB7l" r I had no connexion with defendants' company. On the third of that month, defendants., put in a large, quant jty of pow.der. X. was-, on the SpuE. when the blast went off. On \ the 6th Feb., I made an, examination of the Pei severance Cq/s ground,, in,, com-

pany with Jenkin Evans, one of my partners, and Mr. Hutcheson, now in Vie* toria. The ground was commencing to crack between peg 85, peg 12, and in front of peg 13, also in front of pegs 14, 15, down-to peg 5, and on to peg 85a. The ground was sligh'ly oraclced, but did not absolutely go. away until March. 'I he cracks opened very small, gradually widening tu2ft. andllft. l obstsrvedfrom the manner the ground was slipping that it was necessary to tind some landmark in place of peg l(i. We put in a pe^ on the solid ground between peg 15. and 16—05 feet from pc« 16., at the side of the races. It is at present standing. Its bearing were to the south of a line between 15 and 16. Bearings were taken from some scrub qr flax at Wetherstones Hill, which is there still. The other point was across Munros Gully toafenoevvhichisalsotherestill. Peg 10 remained up till the 3rd March. On the 3rd March, the whole of the races on the hill gave way, Before they gave way, I noticed the craqks in the ground enlarging, indicating that they were going dqwn. Defendants re-constructed the races. On the 4th March, I had a conversation with Nicoll on the crown of the hill. I drew his attention to the way our ground was going down into Morrison and Co.'s workings. I told him we were going to lose a lot of dirt. Nicoll said they did not intend to work the lower face that winter. I offered to wash-up th,e lower- tail race into which t}\e ground was slipping, at our own expense, and return any gold found in it. He said he did not think jt worth while washing-up, as they had only recently washed. This was to give them what gold was in their own. ground and have the tail race o'ean to wash o.ur dirt. The Court adjourned till two o*clock. On resuming, the examination of Clayton was continued : — On the 13th March I had a conversation with Mr. Cormack, one of the defendants. I told him he had turned the water on to the lower tailrace, into which the Perseverance ground was slipping. He said as no one would take it during the dinner hour, to prevent it from running to waste he had turned it on, but after dinner he would turn it off. On the followingday Nicoll turned the water on in the same place, and on my remonstrating with him, Ixe ga.ve the same reason as r*ormac!c. I told him we had a lease of the ground. He said, "We don't care for your right or title. We'll work ahead, and are willing to pay j'ou." The water was put on daily after that. Shortly afterwards I had a conversation with Nicoll, in which I threatened him with an injunction. He referred me to Morrison, who, he said, knpw more about it than him. Morrison afterwards said to me, <■' What's this, Harry, that Nicoll has been telling me*'* He hoped that we would not put an injunction on their I workings, as they had always been good friends, and could settle their disputes without going, to court. Shortly afterwards Nicoll said Morrison-and Co intended to wash, up, construct a new race, and give my party- the use of the tailrace the ground was slipping into. He asked my advice regarding the race, and described its- proposed course. I was very mnph pleased with the offer. Shortly afterwards, I found that they did not intend to, carry out their promise. In June, 1 saw Nicoll, and talked to him about running away onr ground, ami he said they did nob- want it. Between FeY ruary and June the defendants were constantly washing aw.ay the ground belonging to the Perseverance Co., which was gradually slipping down. The defendants' workings w.ere lower, than those of plaintiffs. The next conversation I had on the subject was with Morrison, in March, 1872, in his cHim. I accused him of designedly undermininc and workine otir ground. He admitted having washed some of it, and said if they could wash up they w^ould cease running there, and work the upper face 1 spoke to him about our boundaries, and- reminded him of his promise to make another race* He at first denied having made any agreement, but afterwards said he made an agreement with Mackintosh. I told him that it was agreed that no, powder was to be put into the western side of the race until they got into Speirs' claim. The present race is the one alluded: to. They had not at that time got into Speirs' claim. They were bringing down stuff in such large quantities that it was difficult for them to wash-up. Between June 1871 and March 1872, 1 spoke repeatedly to Niooll on the matter. In this interval the claim- had altered. The ground was gradually sliding dow.n, and was being washed away. In March, 1872, I also met Nicoll on the tailings. lie wanted me to g) to Morrison ; but I refused, giving as a reason that Morrison had denied all knowledge of making the agreement with me % NicoU replied " Morrison knows all about it." .Later in the same month Nicoll saw me, and asked me. what would wj take for a corner of the ground at peg 85. I told him we had* no ground to sell, but we would exchange a piece with them. He said they had' no ground of their- own, and the Great Extended would not part with any. Again, in the same month, T saw Nicoll. He told me he would settle the matter by exchanging a piece of ground- with us. A couple of days afterj wards I met Nicoll and Morrison, who pointed out the piece of land they proprosed to give, which was between peg 16 and where No. 30 is marked on the water reserve, extending a width of about 40 feet in a westerly -direction Thia ground was occupied with water races, and on that account it would not suit us. F said T did not think my mates would take it. i Morrison said. " Oh, you want to. make a rise out of us." I replied, "We don't want either your ground or your mone y; I all we want is to have our own." I* showed them another piece of land, of greater area, oa the same Une, which I said I would accept, as we wanted to cut right throusfhfirito Munro's. Nicoll said'he was glad I did pot accept the offer, as he-j had taken the responsibility on himself, and some of the shareholders in the Great Extended Company were not willing. T, on the same day, pointed out to Nicoll the way his company- were undermining our ground. He said they had no otherway to work. I pointed out a place where he could woyk. Morrison admitted that they were- undermining our ground. Again, in the same month, 1 saw-Nicol. He said his company were agreeable to purchase the ground they were working. I told him we had no ground to sell ; what we had we wanted for ourselves. Her.uswered to the effect that we might be eouioelled.to, take money for it,. I said

1 ' We can s^top your workings by putting an injunction. " He said it might be possible to do so. About 37000 cubic yards were washed away, up to 9th October, 1872. during the fourteen preceding months. I arrived at the calculation by testing the quantity rnn away in a given time. Mr. Adams measured the ground. The experiment took tifteen hours. They (defendants) ran off what was equivalent to three month's running at a daily average of 4SO yards. I believe, from my experience, that more than the quantity estimated has been run away. We washed 3 yards of stuff — 1$ yards from the loose ground an,d a yard and a half from the blue dirt, as near to the boundary dividing the cracked ground from the solid as possible. The blue dirt was taken from one place, and the dirt from the loose stuff from 16 different places. Its value averaged 3s. 6d. per cubic yard ; sixpence was deducted for the cost of washing, leaving a net value of 5s per yard. The claim has been greatly depreciated by being rendered more difficult to work, owing to the support being taken away. I first Baw the iron peg in 18.65. The Perseverance Co. used to work their claim in two places. (The witness indicated the places on the plan.,) The Perseverance Co. sometimes used powder, but only for " jumpers." The last blast defendants put in in a westerly direction, and I accused Nicoll of putting it h* our ground. The month of the tunnel was in the tailrace, The ground was solid and hard at the month of the tunnel when the blast was fired. The blast did not. heave out, but it broke away a lot of stuff behind. They were working 20. or 30 feet from our boundary. The Court adjourned at 4 p.m.. to 10 a.m. the following day.

Wednesday, February 12. The Court resumned at 10 o'clock. Mr. Clayton, cross-examined by Mr. Bar-ton-=-I wa3 niauuger of plaintiffs' claim. The first claim taken up by Morrison &Co. was an extended claim of 4 men's gro,und — a part of ground they now occupy. The j next claim taken up, was ground forming part of the Perseverance Co. The plaintiffs' lea,sa was n'vst taken up. The Perseverance Co. mtvde the first sipplication for a lease. 1 was at the marking out of the two first pieces of land, and at the surveying of the third. The Perseverance claim w»s marked with 4 pegs, (witness marked position of pegs on plan). The pegs were at 85, l(x> 77, and midway between 19 and 77. There was a corner which was not at that time marked, but was subsequently pegged. linmediately after the ground was applied for, .it was surveyed by Drummond, who put in a peg at 53, and another at 85^. They applied for 4 acres, and as, they had not the area witliin their pegs, the surveyor . put in the pegs so as to include the area applied for. I meant peg 25 instead of 85a. The surveyor alteied the dimensions of the claim at my request.. Peg 25 was shifted by Kenpel to' oblige us.. The ground was further extended by Dnvnmond, completing, the. present claim. The second extension took place shortly after the first. Peg No. lft, stood for some years, and was washed down by the Otago Gold Mining Company. It was in its positiou in 18US. 1 saw it in 1868, and in 1869 in a lump of cement. By Drnmmoud's second survey, the Perseverance Co. got an addition of two acres. A lease was applied for. Four acres, was originally applied 1 for. (Application, produced). Drummond's burvey was made after the application. Diunnnond came out to survey the ground within our pegs. He extended the area at our request and for his own convenience. I remained in Morrison's claim till February, 1868, Speirs' claim, was taken, up very shortly after the two claims taken up were by what was then my party. Speirs took up the claim at my suggestion. I don't recollect that Speirs objected to Morrison's claim on the ground that granting it would deprive him of an. outlet for his tailings. Spiers had an outlet ( marked the outlet in plaji), through Morrison's claim. I did not ask Speirs to take up that claim h\ order to raise this difficulty. I did not tell, my mates that I had advised Speirs. Before Morrison and party's lease was surveyed, Morrison soM out of the Perseverance Company. I bought Morrison, oui. There was no writing. The date, of the application for the lease is 23rd March, 1864. (Mr. Barton produced agreement for the sale aboye referred to, dated 13th June, 1864.) Keppel's ground was taken, up previous to the Perseverance and Morrison and Co.'s claims. A portion of Keppel's grouud is included in our claim. There was no change at peg 77. For a long time 1 remained a partner with M.orrison «fc Co. and the Perseverance Co. I gold out of the former in 1868- Morrison arid Co. bought out Speirs before I left them. The sale- of Speirs' claim wa3 in 1866. He had worked the ground previous to selling it. Speirs had got 24 feet inside of peg 85 and peg 12 for a tailrace. Speirs'' tailrace went through the Perseverance Co.'s grouud, aud then through Morrison and Co.'s grouud (marked the line of tailrace on the plan.) Speirs did not purchase from the Perseverance Co. the ground- for an outlet till after the tailrace was constructed. He.purchased it because ! he was running it away. (Memorandum i of sale produced.), That piece of ground w,as at the apex of the triangle.. The piece of groujid extended 15, fe<jt on boundary of Morrison and Co.'s and Perseverance (Vs. If Speirs swears that it extended to fifty feet along the boundary of the two claims, he will be wrong. Murray and party and Wicks took up four men's around. I know Donald M'Kenzie. I did not suggest to hitn to tell Murray to take up, tha ground 1 . When M'Kenzie mentioned' that he had told Murray to take up a. claim, I felt annoyed, as I did not want strangers on the Spur* Recommended Speirs to take up the claim, because Morrison had jumped a piece of my ground. There was never an. exchange, to my knowledge, of, ground between the Perseverance Co. and Morrison and Co., to enable the former to construe^ a tailrace. I haye heard that such an exchange took place in 1865* In the beginning of 1865 I mentioned to Morrison! and party that some of the Perseverance. Co. "Granted to work some ground ou thejbt eastern boundary, aud wanted permission to run through a cornet of Morrison and Co.'s lgase, near peg BJva. I told Morrison that the Perseverance Co. would give a piece of ground along, their eastern boundary aa cpmDeusalion*. Morrison gave, tlie re-

qi^red permission, and the agreement was left to the option of the Perseverance 00. what area of ground they would allow. Morrison and Co. fulfilled their part of the compact, aa also did the Perseverance Co. ("Marked on plan ground left for Morrison and C 0,., and situation of Perseverance tailrace.) The strip of ground wag 20 feet wide at its widest part, diminishing to a n.othing at peg 85a. We ran a tailrace along the line marked on the map, and the ground to the right of the tailrace was intended to belong to defendants. The line between the Perseverance Co. and Morrison and 00. was never pegged. Nothing was arranged, j but it wa3 quite understood that the tail- j race was the boundaiy of the exchanged I land. I was a shareholder in both claims, and X understood this arrangement. Being manager of the Perseverance Co. I felt a delicaoy in engaging in the negotiations, but I suggested that some of the shareholders in each claim should meet and arrange the exchange. I da not know who the shareholders were that negotiated it. I remember asking Mormon if he was satisfied with the terms, and he said he was. The piece of ground Morrison and Co. were to get was defined by tha tailraces. There were not two triangles — one in the Perseverance claim and one Morrison's claim,- -cut off by one continuous line j Mr. Maeassey said he had not interfered with the cross-examination of Mr. Bar-ton ; but if his learned friend proposed to adduce direct evidence of whit he was nowcross-exatnining upon, he would certainly object to any agreement entered i into prior to the execution of the leases. Mr. Barton said he claimed, the land an which the slips took place as the property of Morrison and 00, Cross-examination continued — I remember a photograph being taken before any of the slips occurred (photograph produced.) The cutting- in the corner is not the tailrace alluded to. The deep cuttin* shown was made by the Perseverance Co. That cutting was made at the time the .great blast put in by Morrison and Co. brought down a large quautity of earth,, in the proceeds of which both plaintiffs and defendants participated. Peg 85 was to the right of where tin men Kre shown. In 1870 no, part of the trench was visible. Where fche> water is shown pouring over is Morrison's claim. The trench shown j on the photograph is on the lower face. Them appears to he sp math ing like water shown on the left hand corner of the photograph, but it is impossible for water to, got up there. The cutting is on. the Perseverance ground-. If that trench is the boundary of Clayton and Co. 's ground, the photograph shaws the whole of Morrison and Co.'s. The partnership agreement put in yesterday, referred to. the washing of gold at the lower* face. In 1868, the Perseverance Co. got up Mr-. <• dams to. make a survey,. Ido not remember the exact date, nor was I present during the progress of the survey. Peg 85. was not there then. At that time, peg 16 wa£ in its original position. Peg 19- wa3 downs over the face. Peg 77 might have been moved. There was a dam, near- to peg IG. It was not upon, the highest point of the claim (position of dam marked on map.^ The dam gave way in the latter part of l&iT, or- beginning of 1868, Eyans was in the Perseverance claim when Adams made the survey. He bought in a little time previous. I sold out of Morrison and Co.'s claim in February, 1888. In 1888, the Perseverance Co. were working towards peg 78. A portion of the face marked " precipitous face " in the plan was the face then. The Perseverance Co. have fired several blasts since 1868— the largest being abont 15 or 16 cwt. No blasts have been put in towards the north of the claim since 1868. They had no blast after the new dam was erected, with the exception of a small blast of 7' or 8 cwt. The dam shown on the plan broke away before tha blast, and a naw one was built a quarter of a mile from the workings. On the 10th, March, 1870, the Perseverance Co. and the Great Extended Co. entered into an agreement for carrying the races ofFthe latter's ground. (Agreement produced. It stated that, in consideration of £200, the Great Extended Co. allowed the Perseverance Co* to cut a channel or water-way through their ground.) TheJPerseverance Co. got six water companies, to agree to their races being turned into the channel The six applications were lodged with the Warden on 28th February, and assented 1 to on 16th March, 1870,. There is a deep cutting, at the place- marked "precipitous face" on the plan. There are other faces as deep on the Spur. It is about 80 feet deep. The highest? part of the Blue Spur was about peg 16; It is now more like a. saddle having subsided considerably. The Perseverance Co. is working at a lower level than Morrison and Co. There are 3 terraces worked— the lowest by Hales, the next by the Perseverance Co., and tho next by Morrison and Co. The Court adjourned till 2 o'clock. On resuming at 2 o'clock, the photograph referred to was marked 1, and the map on which Mr. Clayton had drawn pencil lines, was marked A. Cross-examination of Claytoa continued — I was wrong yesterday in stating the ground the pioceeds of which was divided between plaintiffs and defendants under theagreement of April, 1868, was inside peg 85. The correct place is about peg 83a, and" it might have, inoluded a portion of the small triangle I cannot mark,*accurately,"ths exact position of the ground washed under the partnership arrangement. A portion of the dirt washed under the partnership,, arrangement, was from the two men's ground, purchased by Morrison and- parity for the purpose of bringing in a tail race to work their lower face. (The witness, marked on plan A the ground"- on the- Perseverance claim I which was washed under the agreement of tail race. The line showing the tailrace on the plan was drawn by- Mr. 1868). None of. the ground touches the Adams. It stilt exists, with the exception, of the upper- portion, which is filled with stuff "from the Perseverance Co.'s claim. The ground washed during the partnership was 80ft. or a 100 ft from the tailrace. It slipped down into the tailrace. What was between it and the tailrace slipped in before it. The ground between the tailrace and the square marked, was washed by defendants^ but not in partnership with the Perseverance Company. The injunction was issued on the 3rd Sept., but there was some delay in Du.nedin in conjiexiojfc with it. Be-

tween the 23rd Sept., and the 9th Oct. — the date up to which damages were claimed, 4000 yards were washed. The experiments by which the quantity of stuff run off, aud the value per yard were computed, were made in the Perseverance O').'s '{round. The tailrace empioyed was one in ordinary use. (The position of the tail nif^e, and thy pegs put, in for the purpose stated, were marked ou the pl.au A by tho witn 's^). We took the s L uff tn os- j tiiiKite the quantity worked in a ijiv<m thna f p. i.n the place we wore working j It is not the richest portion of the claim The stiuf tlioro is soft, but it is uot the easiest worked. We were short-handed when the experiment was made. A row of pegs were put up and down. I do not recollect the day the experiment whs made. I do not rec >llect the day when Mr. Adams made the measurement. I was not there at the time. There was only one measurement. Mr. Adams was there twice, but the first time he came there was no measurement. I was present at Mr. Adams' first visit. Between the first and last visit the stuff was run off. Ido not recollect the date when the stuff was run off. I made my calculations up to the 9th October, be-; cause the defendants ceased running on that date. Mr. Adams put in pegs in the Perseverance claim in 1368. On 9fch July, 1872, he visited the claim to take some pnnts to ascertain the quantity of ground going away. I was present on that occasion. I made a memorandum in my book from a memorandum male by Margetts since the action ha 3 been commenced. (Marked on map place from where observations were made). Mr. / dams wasatthe-claim, previously. I took no memorandum of the occasion. His object was to take some heights. Mr. Adams made some report, but I do not know whether it was in writing or not. Mr. Marietta, on being ask^d, said that Mr. Adams came to take the he'ghts on the 9th July. Cross- jxamination continued — (The witness marked on plan A the places whare the dirt experimented on were taken ) Mr. Margetts and Mr. Evans were present when I tojk the stuff. We shovullert it into bags, taking G£ or 7 shovelfuls from each of those plac «s, j We putit all into oneplaoe,andnieasnredit with a b'>K cipinle of containing a cubic foot. We washed 60 boxes, of the red dirt taken from the lii places Jn the loose stuff, and (54 of the blue dirt. By deducting a third, as allowance between the measurement of loose dirt and solid dirt, this quintity is equal to 3 yards of solid measurement. The quantity runaway by defendantswascalculated on the same principle. The value of the gold obtainod was 16s. 6£d. The red stuff yielded 2Jwts llgrs. We did not bring down any stones in ths bags larger than a man's fist. I did not ask any of the defendants to be present at the experiment. I did not put all the stuff through the boxfs. We measured a yard and* a half" of each kind of dirt, and threw the- resfr aside. It remains where it was thrown. I undertake to show it to one of defendants. I filled all the bag? myself. Margetts was keopin^ tally, from which I made a copy. The blue dirt was taken from the precipitous face, about* 100 feet from peg Ssa. It was not taken from the richest part of the Perseverance- claim. The yard and a half of bine dirt yielded ldwt 23^T3. The Perseverance Co. washed the stuff out of the channel for the water races, the Great Extended Company allowed them to cut on their ground. The channel waa cut down to the solid cement. The Perseverance Co. are entitled to one chain wide. It is from 10 to 20 feet deep From that channel £172 worth of gold was, obtained. Mr. Barton said he would prove that by actual measurement the cubical contents of the cutting wore 8032 yards. The value- of the stuff from it was sd. per yard. Cross-examination continued. — The cutting mentioned cost usovar-81000. The value of the Perseverance claimhas been depreciated by the operations of defendants. Shareholders have been unable to sell from that cause. Mr. Harvey in Sept. 2nd, purchased a fourteenth share in the claim, for £800. The value of all the shares is thus £11,200. The landslips complained of, occurred before that date. Previous to that on the 14th March, Mr. Margetts bought a seventh share for £1150. That rate per share would render the value of the claim £8050. Mining property is subject to fluctuations the same as any other kind of property. There has been a great increasa in, the value of mining property at the Blue Spur of late. The Great Extended claim has- increased greatly of late. Witness here seated the quantity of gold sold between the date of Margetts purchase, and" that of Harvey^. The quantity of gold wa* 1330 oz*. and its value- was £4950. Under date of March 23, 1838, there appears an entry of £6 4i lid in the claim book, which might be for-powder. Mr. Kvans was the manager of the claim at the time.. The stuff experimented upon^ was washed the-same-day it was procured, and the boxes were cleaned u-p immediately the dirt was put ', through. On some occasions it was customary in the Spur for parties, buying j into, claims to be show the boundaries. I have heard that Evans put in and fired a blast of a ton and r, half of powder. j Large blast* are often fired on the- Blue Spur. A. two ton blast is to be fired on Friday. Keppel's claim was purchased in 1868 by the Perseverance Co., to which Company it now belongs. The price for that, claim and a water race was £2,100. Before the purchase was effected, the Perseverance Co 's ground was slipping into that claim, and was being washed by Keppel. The Perseverance Co* were forced to make the purchase to save themselves. Keppel's claim, at the time of purchase, was moving bodily. There was a small piece of ground from- the Great Extended Co.'s claim tftat fell into the Perseverance Co.'s. working.. Since the blast tired by Morrison and Co. in- 1870, i some ground front Speir's. claim ..has also fallen into the Perseverance Co.'s clann. Since 9th October, na-workr has been done in defendants' claim. Re-examined -by Mr. Macassey — Th& transactions with Morrison and Co. and Speir* and Co. occurred 1 before the Perseverance Co, obtained tfieir lease. No arrangements have bsen since entered into. The arrangement with Speirs was ■ for a narrow strip of land. Bbeherty became a partner of Spefrs^ after- the i transaction* The land girjeu toxSpeirs.i

was partly destroyed, .Tha narrow strp that I agreed to give Morrison has betn used by Morrison and Co. ever since 1868 The level of the Perseverance Co. lower than that of Morrison and Co. is uear peg 28. Those lower workings were commenced in 1870. They could n<>fc '•1-A.ve the slightest possiU j effVcb on the " triangle. f> If the dam which became u.^l-'ks in 1857 harl loalcd, thi water c u'il not have found iui w.iy ia the .In-, cf.-on <»f the landslip. Over Jmikftn iT.'.ni.itl witter has a tenJu.icy to ii .v ct> Uu lowest sound part. The bottom of the claim is lower than peg 16. The water could not possibly get over to the landslip. The reason 1 recommended Speirs to take up his claim, was because Morrison had jumped some of my ground. Photograph A represents Morrison & Co.'a and the Perseverance Co.'s claim bsfors the blast of 1871. In the calculations 3^d per cubic yard wai allowed for stones— in addition to the allowance of one-third for the difference between solid and loose stuff. In selecting the stuff experimented upon, no gold was observed. The Court adjourned till 10 a.m. on Thursday.