WESTPORT WARDEN'S COURT

Westport Times, Volume V, Issue 786, 9 March 1871, Page 2

WESTPORT WARDEN'S COURT

Tuesday, Mabcii 7. (Before J. Giles, Esq., Warden.) Pennefather and party v. Wm. Glass and party.—This was an action for injury sustained by the complainants in consequence of an alleged interference by the defendants with the registered water-right, the property of the complainants. Mr Pitt appeared for the complainants, and Mr J. Bickerton Fisher defeuded. Mr Pitt applied that the plaint note should be amended by inserting the names of certain persons and strikingout others. Mr Fisher objected to the proceeding as altogether irregular, but ultimately withdrew his opposition as his clients desired that the case might be proceeded with. His Worship said that, as it would cause delay, were he to refuse the application, and as the defendants were prepared and anxious that the case should proceed, he would allow the alterations to be made. At the same time he should wish it to be distinctly understood that the course proposed was utterly irregular, and could only be permitted with the consent of all parties concerned. Mr Pitt stated that such a course had been previously adopted. His Worshij) thought that, in such case, it must have been a long time back, and then probably the alteration had reference only to the defendants, whom it was quite possible the complainants might not know. In this case it was altogether different, as the complainants had a right to insert the names of all who brought the action, previous to issuing a summons. Evidence was then called, from which it appeared that the complainants held the first right to six heads of water from Deep Creek, Christmas Terrace. The defendants had also a registered right to divert water from Lake Rochford. For this purpose a race about sixty yar Is in length had been cut, and the remaining distance, about a mile and a half, the water flowed along a natural bed until reaching Deep Creek. The defendants held the second right to divert water from the latter creek, and for that purpose had placed the head of their race about 200 yards higher up tho creek than the point at which the complainants lifted their water. The complainants laid no claim to the water diverted from Lake Rochford, but it was alleged that such in its course took up a considerable body of water, forming small tributaries of Deep Creek, and they urged that, until their six heads were supplied, the "Warden should order that any water in exceßS of the quantity

diverted from Lake lioehf'ord should be passed down the creek. On the 27th ult., the defendants were diverting about a head and a half of water from Lake Rochford, while they were taking two and a half heads from Deep Creek, permitting nothing but drainage to pass down the creek. A notice was served upon the defendants that the complainants' right was not satisfied, and they then brought the present action. For the defence, evidence was called showing that, on the 27th ult., two heads of water were being diverted from Lake Rochford, and only one and a-half heads were taken out of Deep Creek. It was also proved that the complainants obtained the benefit of all the water in the creek at nighttime. The Warden decided that, a special right having been granted to the defendants to divert the water from Lake Rochford into Deep Creek, they were entitled to take an equal quantity from Deep Creek. The only question was as to the quantity that had been raised by the defendants, and, the evidence oi the latter appearing to be more decided on that point, he should give judgment for the defendants with costs. A number of applications were disposed of.