DISTRICT COURT.

Westport Times, Volume II, Issue 167, 12 February 1868, Page 2

DISTRICT COURT.

Before His Honor Justice Clarke. EEID AND PARTY V. QTJEEN AND PARTY. Mr Pitt was engaged for the applicants ; Mr Tyler for the respondents. This case was an appeal from a decision of the Warden at Charleston on the 30th Dec. last, in which the appellants sought to restrain the respondents from turning by means of sluice heads, a certain creek known as Darkey's Creek, the water of which they claimed as essential to them, both for mining operations and for general purposes, and in which judgment was given for defendants, hence tiie appeal. Thomas Brady, examined—My claim is situated at Darkey's Creek, below the respondents sluice-head. The whole of the water of the creek is converted into this race, and in consequence the creek is dry. We require the water for washing and for general purposes.

John Mullen, stated—The respondent always use two sluice-heads of water, and the creek is in consequence dry. We require the water for washing and domestic purposes, as we are camped in the creek. Cross-examined by Mr Tyler—We took up the claim on the 9th October, and since that time we have never been able to get water in the creek. There was other water as near as the creek, but it was stagnant. I have seen the water above where the respondents divert the stream into their sluice, and in my opinion it is capable of carrying three heads of water.

By the Court—l have no guage, but give my opinion from my general knowledge. We wished the water to wash our dirt.

William Moore, examined—l am one of Brady's party. In ordinary weather we have no water in the creek ; we require water for drinking and for general purposes, as well as for washing dirt.

Cross-examined by Mr Tyler—The water-race is two miles long, and may supply 100 men with water. Patrick Jones, examined—l have worked on Darkey's Creek five months. Know both the parties to this suit. The race takes up the water in the creek and leaves us none for our general use. lam not one of Brady's party. Patrick Hall on examined —I have a claim below appellants on same creek, I require some of the water used by respondents race for my own claim, and for general purposes. Cross-examined by Mr Tyler—l have worked in the claim nine months ; a good many adjoining claims were worked by means of pumping, had a water-wheel which one government sluice-head of water would tm*n.

By the Court—l hare often waited for water, and should be often short but for two or three tributaries to the creek which fall in below appellants claim. David Percy examined—l know Darkey's Creek, and the head-race owned by respondents, I want the water for general purposes,

By Mr Tyler—Had been Avaiting some time to wash, owing to there being no water in the creek. This was the case for the appellants. Mr Tyler then called Charles M'Carthy, and examined him as follows : —I am part owner of the race which runs through the principal street in Charleston, and supplies a good many claims with water. The race is two-and-a-half miles long, the greatest quantity of water running through our race at any time is two sluice-heads. Brady's claim is 150 yards further down the creek. John Smith examined—We sometimes have ouly half a head of water, and sometimes our full complement of two heads. Were our right to this taken away it would be depriving us of our means of living, there being no other water to be got. By the Court —Our dam is built across the creek, and diverts the water into our race. We always have water in our dam, and some of the water escapes and flows down the creek in quite a sufficient quantity to supply Brady's party, if they used a dam or sunk a well and used a pump. By Mr Pitt—l will swear that our dam is not eight feet high, and has no backwater.

G-eorge Bateman, examined—l have no interest in either claim. Am working a claim on Darkey's Creek, near appellant's. Can always get sufficient water without using the creek by damming up a blind gully. If Brady and party were allowed the water they would have to divert it, and let it run back into the creek again, below which it would be of no further iise to either parties.

Timothy Lordon, examined —We have plenty of water independant of the creek for our claim on Darkiey's Creek.

Richard Clarke, stated that he knew the claim and the race. The appellant could always get water without using the creek. By Mr Pitt—l did not offer my services as assessor in the case before the "Warden, but was requested to act by the respondent's party. Mr. Tyler then summed up the evidence, and contended that the appellants had not proved their case in its most essential point, viz., that the water was necessary for them for domestic purposes, but that they merely wished to derive the same benefit from the creek that his clients did, and he contended that the first right had necessarily the first claim to protection.

Mr Pitt, in reply, stated that there was a right superior to private right, viz., one called creek right, by which a stream was to he for the benefit of all; and even supposing the respondents had a legal right to the water the law declared that two sluice heads were to be run down the creek independently of all races, and that he contended that he had proved the necessity there was for his client getting the water, both for domestic and general purposes. His Honor then gave judgment, and remarked that this was a most complicated case, and involved several curious points of law, but that the prima right must he upheld, especially where it was shewn that there was sufficient water independently of the creek. Appeal dismissed with costs against the appellants amounting to £l3 13s. The Court then adjourned till the 7th April.