DISTRICT COURT, WESTLAND.

West Coast Times, Issue 600, 27 August 1867, Page 2

DISTRICT COURT, WESTLAND.

CIVIL SITTINGS. Monday, August 26, 1867.

(Before His Honor E. Clarke, Esq., District Court Judge.)

The Court re-opened this morning at 10 o'clock. AITKEN AND OTHEBS, APPELLANTS ; RITCHIE AND OTIIEKS, BESPONDENTS.' Mr South for appellants ; Mr Button for respondents This was an appeal against a decision by Mr Warden Schaw and Assessors, at a Warden's Court holden at the Kanieri, on Ist August, 1867, whereby the appellants(plaintiffs in the Court below) sought to recover damages from the respondents (defendants in the Court below) for driving underneath and letting down part of plaintiff's tunnel, and in which a verdict was given for defendants. The grounds of appeal were as follows:— •1, That the decision of the Assessors wsa ftfla.i»Rt< tU« ev^npe.

2. That the said decision was contrary to the rules and regulations of the West Canterbury Goldfields, No. xii. sub-section i. whereby it is provided that a wall of not less than ten feet shall be maintained on each side of any tunnel. 3. That the respondents did not obtain, and did not prove on the hearing of the said case, that in pursuance of such rules ■and regulations chey had previously to undermining the said tunnel of the appellants, obtained the consent in writing of the appellants to remove the wall thereof or to work therein.

Mr South having opened the appellants' case,

John Browning, a Government Surveyor, was called and sworn.

Mr Button objected to this witness being examined, inasmuch as he had not been examined before the Warden. He contended that fresh evidence could not be given in this ease where one of the grounds of Appeal was, that the verdict was against the evidence. Mr South, co?itra, argued that Mr Browning's evidence was not necessary in the Court below, inasmuch as the Warden and the Assessors had an opportunity of visiting the locus in quo, which this Court had not. He merely wished to supply that want. Mr Button replied, contending that the plan not having been put in at the Warden's Court, it was, to all intents and purposes, fresh evidence, and, as such, could not be received by a Court of Appeal. His Honor over-ruled the objection. Moreover, he thought that he was entitled to receive any evidence, for the case was of the nature of a re-hearing rather than of an appeal. The witness here produced a plan which he had prepared of the locus in quo, and which he stated was correct. There was a space of fourteen inches between the sleepers of the tramway in Aitken and Co.'s and the slabbing of the roof of Ritchie and Co.'s tunnel. The sides of the tunnel of Aitken and Co. had caved in from the sandy nature > of the ground ; no doubt Ritchie and Co.'s drive had assisted that.

Cross-examined — Where the damage is in Aitkin and Co.'-s tunnel, is within the boundary of Ritchie and Oo.'s claim. Both claims were slabbed at the roof, but not at the sides ; there was an old drive which also had been slabbed.

Re-examined — The sides had caved in, and that brought the roof down. By his Honor — I think tho sides of Aitken and Co.'s tunnel caved in from Ritchie and Co. driving underneath. The tunnel was timbered where it fell in.

Wm Aitken, examined by Mr South, deposed that Aitken and Co's tunnel was registered, and he produced a certificate of registration under the hand of the Warden.

Mr Button objected, and argued that a mere certificate was no evidence of registration. There was nothing in the law to provide for" the registration of a tunnel.

His Honor said that it was perfectly immaterial whether provision was made for registering a tunnel or not. If the Warden's signature could be proved, he should be disposed to receive the certificate.

Mr Button said'that he would withdraw the objection. Examination of witness continued— Before our tunnel was interfered with, it was in good working order. The ground was of a loose, sandy character. Ritchie and Co. first put a single drive along the line, and in their subsequent working they came within fourteen inches of the floor of our tunnel. They gave us no notice of their intention to drive near our tunnel, which subsequently fell in through their working. Since then the wet has been let in, and I do not see that that can be easily remedied. We have been stopped working since the 2Lth of June. Cross-examined — I have been a miner, on the West Coast for two years, but no where else. I have been a storekeeper on the West Coast for a few months. I had a claim at the Grey for a short time. The damage is where our tunnel goes through Ritchie and Co's claim. The Warden asked me when we meant to work the tunnel again. I said perhaps it might be worked out in eighteen months We worked the tunnel in a double line.

By his Honor — The tunnel was partly made when we took up the claim. Ritchie and party had not taken up their claim then ; in fact we had driven ar-ross Ritchie's claim before it was taken up.

By Mr Button— The ground which Ritchie and party now occupy formed no part of the ground our party took up. By his Honor — We estimate our damage it LIOO. By Mr South — We did nothing to the floor of our tunnel calculated to injure it.

Henry Hirst, another of the appellants, gave corroborative testimony, and said that the damage done would cost, Ll a foot to repair. Cross-examined— We began to timber our new tunnel a considerable time before it fell through. Miners' wages arc about L 5 per week per man. , We never applied to the Warden for permission to make another tunnel through Ritchie aud Co.'s claim. Wo wanted to get our tunnel on the same level as theirs, so that their working might not interfere with us. Our tunnel is in tho upper level ; that was partly worked out We applied for a new tunnel a little before our tunnel was blocked up.

By the Court — The tunnel could be repaired; I think the cost would be about LllO. I knew that Ritchie and party were undermining our tunnel about two months before the breakage took place. We applied to the Warden to stop Ritchie and party from mining under our tunnel ; he told us to wait until the damage was done. Patrick R. Waddle, another of the appellants, gave similar testimony. James Alexander Thompson, a miner, fitter and engineer, was called, and described the nature of the injuries sustained in tho tunnel belonging to appellants. He estimated the cost of repairing the damage at LIOO.

This closed the appellants' case.

Mr Button addressed the Court on behalf of the respondents, and contended that the rule having reference to the walls of tunnels could only be construed as referring to the sides of tunnels, and not ti> their crown or bottom. lie contended that there was nothing in the Goldfields Act which allowed miners to make tunnels outside their claims. Now, ill the present case, the appellants had actually carried their tunnel right through the respondents' claim, and he argued that neither the rules nor the Act gave parties a right to do that. So much for the law of the case. Then, with regard to the facts, which bore on the ground of appeal that the verdict of the assessors was contrary to the evidence. He should be able to prove that really no damage had been sustained by appel-. lants by tho action of respondents, but, PR ft? tjontrary, thas th.c damage wftS $<}

result of another tunnel which appellants had been driving. Robert Ritchie, one of the respondents, deposed — I have been mining over twelve years. I call the sides of a tunnel the walls ; but not the bottom or top, I have examined appellants' tunnel, and I am of opinion that the sides gave way from the want of side laths, as tlie soil is of a sandy nature. When the assessors were on the ground I could have repaired the damage fer about L 7 or LB. There is a branch tunnel near where the damage has taken place ; that is about seven feet froajjtfie other tunnel.

Cross-examined — Ihavenpvervisitedtha tunnel since the time I yisited it with the assessors ; that was our tunnel ; Aitken's * tunnel was choked up. I consider that we could not come within ten feet of the sides of the other tunnel, but that we were at liberty to come nearer to the crown or the floor. When I visited Aitken's tunnel I saw that the sand had fallen from the sides, but the earth had not fallen into our tunnel. By His Honor — I do not consider that our excavating under the walls of the appellants' tunnel would cause the earth to fall therein, our mine might have shaken the sides. I believe the earth has fallen in on both sides of appellant's tunnel, and I consider that to have been caused by the heavy weather and water coming down the shafts.

Samuel Morris, one of the respondentSj corroborated the evidence of the previous witness, and .described the damage siis Itained in Aitken's tunnel as the resuli of water coming down the shafts, and throiigh the tunnel not having side laths. William Turner gave corroborative testimony.

Mr Button proposed to call one of the assessors.

Mr South objected to the assessors being called. His Honor ruled that the assessors ought not to be called* He considered an assessor to be in the place of a juryman, and it would be most unfair to call a juryman and ask him on what ground he formed his opinion. In some cases the Warden might be called. Mr Button said he proposed to ask the assessors what they saw when they visited the locus in quo. Mr South — You ought to prove that by the evidence of experts, such as Mr Thompson. His Honor said he could not allow the the assessors to be called.

Mr Button, in summing up respondents' case, said that all the observations he should make were these : Mr Thompson's evidence was of no weight, because Mr Thompson had visited the place since the assessors viewed it.

Mr South replied upon the whole case, and contended that the walls of a tunnel included the crown and the base as well as the sides. He argued that after hearing the evidence given by the appellants' witnesses that day, the verdict of the assessors was contrary to the evidence. His Honor said that he regretted in the decision he had to give, the merits of the case would not be decided, and it was because his decision was based, upon the point of law with regard to the rule which required that not less than walls of ten feet should be left on the sides of a tunnel. Now he was of opinion that the rule in question referred only to the sides, and not to the floor or base of tunnel, and holding this view, without entering into the other grounds of appeal, he must affirm the decision of the Court below, and dismiss the appeal with costs. The Court then adjourned sine die.