DUNSTAN.

Tuapeka Times, Volume VII, Issue 372, 11 July 1874, Page 3

DUNSTAN.

" ' (From out oitm Correspondent.) - ' The appeal case of Feraud v. Holt came on for hearing, after adjournment, -on Thursday Ust, and, terminated- on Mondaynight. The Judge t reßerved his decision. Having cursorily noticed this^ case on "previous occasions,, and it " being one ' which raises ■ a gr^ah questiou as regards ' water for the supply 'of goldfields towns,- it -may interest some to revert - again, to it more- fully. The case before the , W.arden was ai complaint by Mr. Feraud, as bolder .of a .miner's ' right, against .Holt for abuse of privileges relating to a right of water Which- defendant held. "The main point raised that Holt was not using tho water for gold jnuiing purposes, iv accordance with the 1 Goldfields Act under which the right was granted, but > was • letting -part of it for irrigating gardens and for the use of the town of Clyde, and for the purpose of driving his , . coalpit machinery ; for which abuses plaintiff >-, -asked that Holt's certificate be cancelled. That the water had been used exclusively for the purposes stated, was not: denied ; but it . was attempted, to be shown that the use he yraa making of .the 'water was in accordance with the terms upori.ivhich he got his certificate, which had been refused in tho first in- . '-stance when applied for for mining purposes, but was afterwards granted to him for the •use of the town of Clyde, and other purposes. The W.arden 'decided, that a forfeiture had ■ '"been incurred' through tho non-use of the water for gold mining purposes ; but seeing the consequences of cancellation, he decided %o avail h,imself of the 115 th section of tho Act, and inflict a fine in lieu of forfeiture. -He. inflicted a fine of one shilling, and the ' costs in bringing the suit. Agaiust this decision arose ■ the appeal.*' Cancellation only ■would satisfy the plaintiff. It is impossible for me .to. give anything 'like a resum6o( the evidence, but I will notice shortly the main , pointa set iforth. in the case. ' The appellant.- , ' held that the right was for mining purposes, , fts there was no power to- divert water under any other, Act at the time this was granted ; that the right was granted in 1863, uuder the Ooldfields Act of 1862, which gave no pow6r to Bell water j and in the interval between 1863 and.Jihe ; Act of, 1866 or 1867, which gavo power to sell/ the 'town of Clyde was- with-, drawn from' the 1 gbldfields and reserved' for a township. The-Act-only giving power to sell .water onthe goldfields, it-waß illegal to sell , - water outside, which had been admitted to hare bee.n done by defendant. Tie respondent held that the Government gave the , -aright to the water with the condition that it should supply the town, and he put a bundle of correspondence -in that occurred between the Government, -,the then Warden, and him- •. self. The -respondent 'also urged that, though not expressly stated in • the Act that. water ■could be diverted for domestic purposes, water being so reserved, it may be inferred that it .could be diverted ; that as the race- was and hod been supplying a 'Considerable number of holders of miner's rights, it may be looked on , m for mining purposes ; that application had ;been made to extend the water race, or alter • its course; for the 'purpose of using it for , .mining purposes, which was refused by the Warden, backed by, the voice of the inbabi-, tants, -, ;The Judge, in intimating that he would reserve his decision, drew attention to ' the vast importance of the case, and the effect that, if a forfeiture was declared, it would . hare over nearly the whole of the goldfields, towns in the Province. He instanced the town of Lawrence, which had gone' to the expense of -some £1200 for waterworks, the . eupplyip which was depending onaminingi aright , also; Naseby, Cromwell, and Alexandra, - , which latter hadlatelygiven. some £800 for a •water.race, which may at any time be open to - the same objection. , He reviewed some of the points, to which he would devote serious consideration,', and on which he would get the -opinion of the, Supreme Court. He said he had great difficulty in following the Warden : in his decision, as the case was not one which (he 115 th section was intended to operate on. That section was looked upon in this way : , f You have committed a fault ; I punish you. - So and sin no, more ;■" but here the sinning • would be continually going on as before. He had some doubts about the point relating to, ;■ .the appeal — whether it wa3 possible, that it ,- f , .could take the course of a cross appeal, which, r t^f. forfeiture were not declared, would give a f ..Iwtter title than the decision of the Warden gave to respondent — meaning thereby, that . ■_ his. title would be found either good or bad, „ «nd aot.be left in the position of -always being liable to an action.- The -jurisdiction- of the . .Warden .to .declare a.' forfeit was also a point _ hie had great doubts upon, seeing that the ♦buses. were incurred .putside the goldfields ; Mit was, part was m £lie .goldfields and part \, - out— ihe.race heading! in tho goldfields and . . i ,4erHunating without them. - The circumstance . . of" the- respondent' 'being refused h'is'app'lica- - ' tiOB to extend his race for ttie purpose of, ". ' 'mnng it for mining, put him in the position of being entitled , to clemency,' for it did really •Beam hard to binder a, man from complying with the law, and then tq- punish Him for it . . .'ffterwarde. He expressed himself strongly ;>«gain(t the case being one on which the 115 th clause had afty bearing,- but he was not at all ' tore but that a fine might be still inflicted in ' ' -Bta-flf forfeitu:e. Various ether points were ■•■',' iientioned, and at the close he intimated that ""'he 1 would get the opinion of the Supreme $?Court on some of these point 6; and perhaps, ' difficultiei intfie way in giving a i^opMipßi he would afote a case, and -let the i.rJSJaprtiitt. Court decide..^ In speaking of ,rK*UUO|»caße'forth^Sut>retne-Cdurt; he said f S**vioid to rather ino#n?epieiit tile part icb to

the suit being here and he in-Dunedin, and 'suggested that' Mr. Wils{>ir,'|the solicitor for respondent, could employ a solicitor in Dune'dinj and "Mr. Feraud might do tb.6 same/ to • wuicu tlie latter, replied that lie wfluld trust no man with. hiß case. . i.hay& already com-, pliih'ente'lhim on his powers of cross-exami- ' nntjo;i ana as a pleader ; the way he addresses his 'opponent as '.''my, learned friend," when referriug t'6 something he had said, gives that f rien.'l the assurance that he has got a foemau worthy of his steel. My own opinion regardthis case and other matters relating to water rights on the goldfields, I must 'leave for' another- time 5 but I cannot conclude without noticing a little episode whioh occurred. On Monday the Court met to have the decision of the Judge. Mr. Wilson was unavoidably absent. The Judge proposed to adjourn for >a. few hours. Mr. Feraud objected, as the case had been several times adjourned through Mr. Wilson,, and complained that the case had already been thirty-five days lingering on since, the hearing by the Warden. The Judge remarked that appellant might think himself lucky if it was settled before his hair was white.- In, disclaiming to be looking for any -personal benefit in case of forfeiture being declared through being the promoter, the Judge said Mr. Feriiud appeared in this Court as the Domino. The mask was that of the miner, but that off, there was the freeholder before them ;. and it was possible that if forfeiture was declared, it would revert to the freeholder. Mr. Feraud said that he thought it Bhould go to the freeholder. " Yes, no doubt," said the Judge, " seeing the promoter and he sleeps inthe one bed." . .