THE COURTS.

Tuapeka Times, Volume VI, Issue 290, 21 August 1873, Page 5

THE COURTS.

DISTRICT COUET.

(Before His Honor Judge Grey.) Wednesday, 13th August. M'Carthy v. Kitto.— This was an appeal from the decision of Mr. Warden Borton made in a proceeding on the 19th May last, at Roxburgh, in which the respondent was plaintiff and the appellant was defendant, and in which an order had been made by the Warden to the following effect : — That the defendant be ordered to desist from any further interference with plaintiff's water race, and pay costs of court, 11s. William Kitto, respondent, gave evidence as follows — That he had purchased the race about seven years ago ; that the race extended from a creek above tie Dumbarton Rock to a place known as Bell Hill, about seven miles below ; that he used the race for working his claim ; that M'Carthy, about August, 1869, applied for and obtained an agricultural lease of sections 4 and 8, block L, Benger district, including a portion of the corner of the water race, and on the 6th May last had converted the title to a freehold ; that during the last eleven months there had been no water available for the race, and consequently he had not been able to use it uninterruptedly, but that he had never abandoned it. He produced his miner's right and licenses for the whole period during which he had occupied the race. The last license was dated in February last. About the beginning of July last M'Carthy ploughed and cross-ploughed the sections, and completely obliterated the race, whereupon he (Kit to) proceeded to clear it out. M'Carthy prevented his doing bo, and Kitto then took the proceedings before narrated in the Warden's Court. Dr. Stewart gave evidence that Kitto was during eleven months necessarilyabsent owing to the illness of his wife, M'Carthy gave evidence that the race had been ploughed up the previous year, and had, in fact, been abandoned by the respondent. This evidence was distinctly qontra' dieted by Steel and M'Culloch. Mr. M'Coy contended that the race having, in fact, been abandoned, the appelant had a right to treat it as such and do what he pleased with the ground. He cited Langely re Barton, Clark v. Ridley, and Thompson v. Begg, and subsection 7 of section 21, the Goldfields Act, 1866, and section 4, regulation 12, of Regulations for the Otago Goldnelds. Mr. Mouat cited Otago Waste Lands Act, 1866, section 125; Otago Waste lands Act, 1872, sections 67 and 75; Robertson v. Blnndell, 1 Macass 689 ; the Aladdin Gold Mining Company v, the Aladdin and Try-Again United Gold Mining Company, 6 W. W. and A.8., Eg. 266, His Honor sustained the decision of the Court below with cost of Court, and professional cost, L 7.