FIGHT FOR WATER.

Alexandra Herald and Central Otago Gazette, Issue 1208, 19 November 1919, Page 5

FIGHT FOR WATER.

SUCCESSFUL SUIT FOR FORFEITURE.

The battle-royal which has been waged in the district courts these last few months over the possession of water lights, was continued at the Warden's Court at Blacks on Friday last, 14th November. Mr E. D. Mosley, 5.M.., occupied the bench and was engaged from 11 a.m., till about 10 p.m., pronouncing judgment on the many eases which came up for consideration. Among tho several was a suit for forfeiture lodged by J. Arnold and Fred Wilson foi whom Mr R. Gitkison of Dunedin appeared, and the defendants were tho Un-! daunted Tinkers Gold Mining Co., Ltd., and Messrs Geo. Harvey, Win. M'Connochie, J. Sheppard, Wm. Laidlaw. The suit was one for forfeiture of water race 297 Thomson's Creek.

Mr Gilkison briefly opened the case by describing the location of the race, which bad not been used for some time. It was a short race at a low level.

Fred Wilson, settler, Omakau, one of the plaintiffs. Ho knew the race and had inspected same tecently. It had not been carrying water for a number of years and was not in a condition to carry water.—He pro duced photographs of certain parts of the race. He could only speak as to how he found it.

To Mr Bodkin : He inspected the rare on Ktn November. The photogi"Eoh was at a part about 2 miles from the intake.

Jas. Young, labourer, formerly miner, Matakanui. Knew ruee about 20 years. Saw race 6th November. Found it in a very bad state with no water in it. No plant or piping in connection with the lace by which the water could be utilised. Not used for mining for 15 years. Race grown over with thistles. To Mr Bodkin : Made first inspection for the purpose of this case on 6th November. Previously he had seen it about 18 months ago. For the last 18 months be had lived about 20 miles away. Could not say what use the Mount Morgan Coy had made of the race during the past 18 months.

T. C. Donnelly, miner Matakanui. This race is the original XL race. Had a right to 7 heads. Known race since left school. He had water from the race in January or February 1917. The water was then leased to Mount Morgin Co. He saw race about 2.'Jrd October. Head of race washed away. To Mr Bodkin : This XL right was the property of the Undaunted Coy. He was the manager of the Undaunted Cay. The water was used by the Mount Morgan Co., till the Undaunted Coy went into liquidation in April 1917. The head of a raee is usually washed away with ever}* flood.

Richard Clarke, woolscourer, Qmakau. Saw the XL race fust occasion 13th September. Take al>out £SO to do up the head. Race appealed not to have been used for come years. Mr "Bodkin for the defence admitted liability to forfeiture. Race leased to the Mount Morgan Coy. Undaunted Coy., the owners of the race, went into liquidation in 1017. This water, was leased to the Mount Morgan Coy*, which continued to use the water till February of this year. The fault if any, was the fault of the leaser*, 'fids right was likely to be acquired under the control of the Vincent County Council for the benefit of the settlers generally. If the rights are forfeited then the Undaunted Coy-, would be unable to gi\;c the purchasers a title. He submitted that the circumstances called for the infliction of a line in lieu of forfeiture. Under recent legislation the Mining Act had been amended giving the Warden power to so act. If the plaintiffs succeeded it meant that they got a monoply of the water over the settlers generally, which was not equitable. C. E. Richards, secretary Undaunted Tinkers Oy. His company took over the XL right for the Undaunted Oy- The Mount Morgan paid rent to his company right up to January this year for the use of this water. He could not say that the water was used for mining. John Sbeppaid, representative of the Matakanui Riding to the Vincent County Council. The council decided by resolution unanimously to acquire the water rights and hold same for the use of ull the settlers who eared to come in.

Mr Gilkison raised the objection to this manner of bringuig the couucil into the matter. The clerk ought to appear and produce the minute. The Wat den said he would require to see the exact wording of tbe resolution. - yMr Gilkison held this was not a case for a fine for the practice had been that a fine was imposed in order to give the owners another chance io proceed with mining. In this case there was no intention- to mine. t He* also held that a careful reading of the new Amending Act "made no alteration in the law. The .court was always directed to act in a just and equitable way. The public interest should be looked at in a very wide sense and not merely in the sense of the benefit of a few in a particular, locality, even with - tbe bclpfof a public' bod v.

Warden in giving judgment said there was no new departure ia this case, but what was the practice for a number of years. He was not prepared to say that *the ( public interest would be served by inflicting a fine in lieu of forfeiture. The agricultural interests were at the present time of greater importance than mining, but he could not get away from the fact that he was administering a mining law. Seven heads of water spread over a number of settlers' would not go very far. He did not think such a limited scheme, even under the control of the county council, was practical. He would like to see all the available water controlled by the council or Crown for the benefit of the settlers. The water right is subject to forfeiture. Forfeiture is decreed and costs allowed plaintiff £8 9s. The "Warden further expressed the opinion that it would have better had the Government held to the original clause in the recent Amendment Act giving the Minister power to have this right forfeited to the Crown.