IMPORTANT DECISION.

Tuapeka Times, Volume VI, Issue 287, 31 July 1873, Page 8

IMPORTANT DECISION.

WARDEN'S COURT, ROXBURGH.

(Before J. B. Borfcon, Esq., R.M.) Satubday, July 19. Kitto v. M'CartJiy. — Complainant averred defendant had interfered with his cleaning out and having access to his water race, Moa Flat. Mr. Kinnaston, Secretary of the Progress Committee, appeared for Kitto. William Kitto, complainant, being sworn, deposed that he was the owner of a water race at Moa Flat (certificate produced). That on Tuesday be went for the purpose of cleaning: out this race, when M'Carthy ordered him oft' ; and that he was thereby prevented from making use of his nice. M'Carthy had ploughed up the race. Cross-examined — There had been no water in the race for twelve months, or thereabouts. He had another head race, but the one in question was required to work Bell Hill. Had never told M'Cartfiy the ground at Bell Hill would not pay tucker, but might have said it would not pay without sufficient water. The reason the race was not occupied was on account of the scarcity of water. Would not swear there had not been plenty of water at any time in the twelve months. Had a great deal of domestic trouble ; was off work six weeks in consequence last summer. Had not sold water to Tubinan. Ou being pressed, witness admitted he had mortgaged a race carrying a small quantity of water to Tubman. Did not know whether M'Carthy's farm was freehold or not. Did not interfere when the race was being ploughed up, because he did not know of it. Lived at Dumbarton Rock, perhaps half a mile, or over, from the race. The Warden asked Mr. M'Carthy if he had any further questions to put. Mr. McCarthy ; £To more, your reverence. The Warden reproved Mr. M'Carfchy for his manner of addressing the Bench. He desired it to be uuderstood that there were appropriate and respectful ways of doing it, and he intended to insist upon these being observed. Mr. M'Carthy having apologised, Mr. Kinnaston reviewed the evidence on behalf of complainant. For the defence, Michael M'Carthy, being sworn, deposed that the race in question had been abandoned for over fifteen months. It passed through his freehold property. Had suffered great losses from the flooding of his land by water races. Acknowledged ploughing up water|race and telling Kitto to desist from recutting it. When be purchased the ground he paid for 100 acres, the full extent. Cross-examined — Crown grant had not issued yet. Produced recoipt for purchase money. Jame/i Cooper deposed to Belling a Wate:* race to Kitto. Mr. Kinnaston based his case on the section of the regulations allowing extended protection in cases of scarcity of water and sickness, and on that securing existing rights as regards races and roads traversing agricultural leases. Mr. M'Carthy in defence urged that the land being bis freehold property, no race could be cut through it without his sanction ; that the race in question, having contained no water for over thirty days in the first place, and over six months even were the extension allowed under the regulations granted, was forfeited and abandoned ; that no due notice had been given him of the intention of Kitto to enter on his land ; that the plea of scarcity of water was inadmissable, as during the twelve months there had been plenty of water for long periods, while the sickness in Eitto's family had occurred during the dryest months in the year. Tho Warden, in summing up, said it was clear Kitto had uctpd so as

almost to incur forfeiture ; but being an ignorant man, he had acted without due knowledge of the regulations. Mr. M'Carthy's conduct had been illegal throughout, and he had brought no definite proof that the ground traversed by the race was freehold. He found by reference to the plan in the office that the race was marked thereon. His decision would therefore be in favor of complainant, with costs of court. Mr. M'Carthy gave notice of appeal.