WESTPORT WARDEN'S COURT.

Westport Times, Volume V, Issue 832, 1 July 1871, Page 2

WESTPORT WARDEN'S COURT.

Friday, June 30. (Before J. Giles, Esq., Warden.) APPLICATIONS. T. M'Grath applied for the right to take two heads of water from Lanley's Creek. The application was objected to by Eobinson and party, who contended that the water diverted from Lanley's Creek by means of a by-wash fed their dam, and that the construction of a head-race by the applicant would interfere with their supply. In reply to the Court, the objectors stated that they had not constructed the by-wash. M'Grath stated that he made the present application with the consent of Lanley himself, who constructed the by-wash. Application granted. James Wail and party applied for a branch tunnel to serve as a tail-race to their workings. Granted. John Dudgeon applied for registration of a head-race to convey iifteen inches of water from Mountain Creek. Mr Fisher appeared for the objector, William Jones, and stated that the applicant proposed to interfere with Jones's registered right. The objector's right was produced. The applicant produced a transfer, dated December, 1867, but produced no certificate. The matter was adjourned until Friday next, to enable the applicant to produce certificate of registration, on payment; of £2 lis costs. o'toole and paktt t. mili,iken and PARTY. The complainants in this case sought for an order to restrain the defendants from interfering with their registered right, and sued tor £lO damages, caused by the unlawful interference of the defendants. Mr Fisher appeared defendants. The certificates of registration were put in, showing that the complainants held the prior right to divert water

from M' untain Creek, ami the defendants a subordinate right. The summons not setting forth the names of all the defendants, it was decided to amend the same, according to the certificate of registration. The evidence of Hugh Tafjaart, one of the complainants, was then taken. He stated that on Monday, the 2Gtli June, O'Toole and party wore short of water, and a notice was served upon the defendants to cease diverting water. That notice was complied with, and the water was turned off at the head of the defendants' race. On Wednesday the complainants were again short of water, and witness went up the creek, and found the water flowing down the defendants' race.

The facts were admitted by the defendants, who stated that they complied with the notice on Monday last, and had not since interfered with the race.- They had been since supplied with water from Cole and party. For the defence, Henry Deroux stated that he attended to the race for the defendants. The water was turned off after receiving the notice on the Monday. A miuer named Donlan held a right to the head-race jointly with the defendants, but worked separate ground. Donlan's race branched off about 500 yard's distant from defendant's claim. Donlan had been washing ever since the 26th of June.

Mr Fisher contended that tbe complainants must be ujnsuired, as they had failed to prove their case against the defendants, ' who had complied with the order, and had not interfered with the race since.

The complaiuants. pointed out the inconvenience that they suffered from constant interference with their prior right. It was impossible for them to know all the parties who were interested in the right held by the defendants. On the Monday* the defendants turned the water into the creek, but on Wednesday, finding the water again diverted, there was no other course but to sue the defendants.

The Warden admitted that any party so situated as the complainants, might bo subjected to inueli inconvenience. In the present case, however, he must nonsuit them, as he did not consider any case had been made out against the defendants. It would be for the complainants to discover who were the parties interfering with their right, and take action against them; or failing that, a summons might have been issued against all the parties whose nauK;s appeared on the certificate of registration.