WATER RIGHTS.

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

WATER RIGHTS.

—Peculiar Mistake Loads to Litigation— Amending' Act Saves Situation for Defendants.-^-To Mr EfD. Mosley, S:M., possibly falls the distinction of exercising for the first time in the dominiqn, 1 the hew powers granted to the Warden under the Amending Act of the Mining Law passed by the House at the end of the Session just closed. The case was heard at tho Warden's Court, Blacks, last Friday, and contained the unusual feature of being complicated as a result of a peculiar mistake made several years ago, in the description lodged in the court records. due license gave title to one race while the mining company had pegged out and used quite another race. This mistake had only been discovered a lew-weeks ago, and in the meautime the water race and water rights in use had been recently purchased by the settlers who now tound their rights attacked and liable to forteiturc as the result of the unwitting error by the miniug company. The suit for forfeiture was entered by Fred Wilson, for whom Mr It. Gilkison appeared and the defendants included the settlers interested in the recent purchase, ten in number:—Messrs F. Bead, E. J.Morau, G. Huddleston, J. G. Byan, J. H. Truesdale, G. Why to, G. Harvey, J- Macdonald A. Sutherland, J. Nay lor." Mr Bodkin acted for the defendants. ' The suit was for forfeiture of water race from Thomson's Creek. The following evidence was called:— .

T. C. Donnelly, miner, Matakanui. Larduers race had not been used since the Blue Duck Coy. had gone into liquidation. The fluming which he removed had not been replaced. It had not been used by anyone. Fred Wslson. He inspected the race on the 9th. Had not been used for some considerable time. Upper race in a worse state.

Mr Bodkin submitted that this was a case where a decree of forfeiture should not* be granted. The company realised that the water had been diverted into a raee_ to which they had no legal title. A. mistake was made in the preparation of the application, by a misdescription of the course of the race. Since 1911 this water right had been used till the Mount Morgan Go went into liquidation. Protection was still in force. Recently the. property had been sold and purchased by the defendants and the money paid, in all sincerity of purpose, and believing that all the requirements of the law had been complied with. He hold this was a case, where if there was any default by the' prcvioue owners, a fine ought to be imposed in lieu of forfeiture. No one els.e but Mr Donnelly could have discovered that the titles were not in order. The plaintiff could still come in to the county scheme. Several of the defendants had been using this water-by the goodwill of the mining company and had no other water for domestic purpo-cs. Jas. Cairns, four years manager of Mount-Morgan Co. Only found out a few weeks ago that the Mount Morgan had a title to the Undaunted Little race. The race that he was using was the only race he knew of, formerly known as Shannon and Barron race, the water in which had been running for the past 20 years. -

Geo. White, settler,' Alatakanui, resident: 12 years. No other water" rights beyond this water for domestic purposes. Farm of 130 acres, and depending on this water for irrigation aud for watering this stock. He never knew there existed any such race as the Undaunted Littlo race. " '

Fred Reed, settler,; Afatakauui. He made enquiries from tho Inspector of Alines and was personally quite satisfied that the rights were in order. Decided to purchase, knowing that the rights were protected. Had paid £4.50 for the rights. Recently approached tho Yincent Comity Council to take over the rights under a deed of assignment for the benefit of all settlers now and in the future. He had no rights even for domestic purposes.

Albert Sutherland, Alatakanui. He manages his mother's farm. Three paddocks in which there are no water for stock, and have no rights for domestic purposes. It is the intention to give the school committee a supply of water. E. J. JVloran, farmer,; Alatakauui. This water commands 370 acres of his farm and-he has no other supply'for domestic purposes. J. G. Ryan has 100 acres and will have no other water for domestic purposes or stock. Ho only knew of this one right, known as the Alount Alorgan rights. The county was to have absolute control. D. Fraser, miner, Alatakanui, He occupied a residence site about 40 yards from the Alount Alorga"n race. There were several other married men in Jus locality in the same position as himself, namely, dependont on this right for their idomestic supply of water. Air Gilkison in replying referred to the qf the Tinkers Gold Alining Coy. which endeavoured to resist a suit for forfeiture on the grounds of a mistake having been made in the position of the race. /It Was held in the judgment that the mistake made did -not- constitute special circumstances. 'Another case referred to was Hawley y. B. Muir. Here again a mistake made,, was not allowed to be a reasonable defence. The mistake made in* the present case was one which might easily have been avoided had reasonable care been taken. Not one of the purchasers .had taken any steps to make certain of the titles, being purchased. The fact of other settlers using the'water-; had .no, bearing on the present case, and could hardly be used as a legitimate defence. . ' :—r Judgment.—

The Warden. This was an exceedingly diflixjult-case owing to an unfortunate mistake having been made in the past and'further complicated by a .salei of -the. eights to tea-\setUcrs/:- ; for the,pawer given to.the Warden under' the recent Amending Act of this session, he. would have, felt compelled to decree forfeiture, the .Un--daunted Tinkers Gold Mining Co. Ltd., was the leading case on thequestion of., a mistake. However the Amending Act passed a fevy days ago enables me to give a decree which in my opinion js certainly an equitable one. The applicant in tins case has.Hlrca.ly got water and now seeks

forfeiture of other rights and, have lainself declared the first applicant.- On the other hand we have ten defendants with farnis i raging from 130 to 400 gores m the 'locality. According to the evidence they have little or no water, and if forfeiture Was declared, sheso settlers would be deprived of watcjv, I don't intend to deprive them'of the water. Under Section IV of the Amending Act 1919 he held taking all the circumstances into: account, it -would be—just and equitable—tnat I should not decree forfeiture. lam of the opinion that forfeiture has accrued but in the exercise of th; discretion how given to me, I shall inflict a fine in lieu of forfeiture. Am not satisfied that section 182 applies in this case. A genuine mistake appears to have beeu made by the settlers involved, who after all, on legal questions, are but laymen. Defendants will be fined £2O in lieu of a decree of forfeiture. Uosfs £3 3s.

Mr Gilldnson asked the Warden to allow the plaintiff a sum out of the fine towards costs.. Warden allowed plaintiff £0 03 oat of the fine.