WARDEN’S COURT

Cromwell Argus, Volume LXVIII, Issue 3485, 6 September 1937, Page 5

WARDEN’S COURT

(Before Warden H. J. Diion). C. C. Sanders; Application fur a license for a water race,' and rvertificate of abandonment. Mr Jas. C. Parcel! appeared for applicant and Mr Harlow for two objectors, the Cromwell Development Co., and the Cromwell Racecourse Trust. Mr Parcel 1 abated that the main feature of the action was an application for a certificate of abandonment against the Cromwell Development Co. C. G. Sanders said the secretary of the Company in Dunedin had told him the correct number of the race was 3715. The race did not cross any road or street. The source and part of the race was in _M. Ritchie’s freehold and also part in the freehold of R. and D. ■ Ritchie and his own. Knew of no valid objection to the granting of his license and knew of no public or private right that would be atfectcd by the granting of this right. Thought tho name of the gully' which he was api plying for tho right in was Rocky gul- | ly. The racecourse! right ran down tho . gully and the Development Co. had a right. About seven or eight years ago , he purchased a property at Ripponvale J and shortly he became aware the company had a right. There were signs of an old race and a broken bos when lie first went there but he had never seen water in the race until aftei he applied for it. Seven or eight year* ago the race, was grown over with grass and full of atones and generally in a neglected condition. About three years ago he mentioned tho race to the raeeman. Wilson, who told him he (Wilson) occasionally turned a drop of w ater in to keep the right good. Ho had seen the race three or four times a year and had never seen water in it until after he had applied for it. Had never seen it repaired either until after he applied for it and did not know of any instance where it had supplied water to anyone. Every time he saw the race it was neglected and out of repair. During the last 18 months, prior to his application, he had observed the race closely ami it had never been used during that time. Two hours’ work would have brought the water into the company’s race. There was only a decayed board on one side of the intake box w'hen he applied. After he applied a gutter was cut and a little water taken into the company’s race. The secretary seemed to bo quite familiar with tho locality as he had a discussion with Mr Macpherson (the secretary) and knew' about the racecourse water coming down the gully and was familiar with tho right being attacked. There was water available in the creek if he obtained a grant. The racecourse water was turned out for two months in the winter and there was still wator in the creek. The company could put water in their race and augment their present supply. This would be no use to the company if their mam race was empty because tho race was very porous and the small amount of water w'ould leak out in a very short distance.

To the Warden : For a short distance he would use the channel leading to tho company’s race. Cross-examined, he thought there was the normal flow in the company’s small race and he presumed it would be an eighth of an head. About as much as a jin pipe would carry would he running. He was up on 10th August and ist July and several other times and there was much the same quantity running as at present. He remembered there was a thaw in July. He was not up immediately after the thaw. There was much about the same water in whether the racecourse water was in or out. Ho would he surprised to know that w hen measured there was only i-ißth of a head on the 13th July, lie bail been up prior to pegging out the race to see if there was any w ater in it. lie had in his mind for u months a suit for forfeiture. He visit-

cd the race early m September. 1030. when the company'’s water was out for

cleaning their race ami the water was not used even then. He could not give any definite' dates before this. Mr Parcel! contended that the crossexamination was becoming only silly it seemed absurd that the witness should remember these dates over seven or eight years.

Continuing, he did not know the company’s right wjis |-iolh. under- . stood it was r-Bth. The race was al- ] ways leaking. Agreed that the com- ] puny could not make any practical use ] of this right unless used in conjunction, with their main supply. The little race was 80 or (jo yards long and it had a good fall. Admitted it wqyld not nee<l to be very big to take the right and that it w>s easily blocked. There was always debris rolling down off the hill into it?. He agreed that last season was a good one for water. Kc-cxamiued, he had taken photos (submitted) of the race when he 1 pegged it. The channel as at presort! , cut would not take any more water I than was in it. He would he quite satisfied with the water now in the race. Al ihp Ijifjeheon adjournment the Warden, 3-t the request qf both parties, made an inspection nf tb?> ra rp \n dispute. George Longshaw. who lived in Sanders’ house for years, gave corroborative evidence as to the state of the race and never .seeing it used. C R fss-gx a mined, he was mining and doing some rabbiting on Ritchie’; property and was un this race getting firewood about a week before he left. Had never discussed the ease with anyone at all. A. 0, Tlndgman. formerly resident for jo years at Ttlppoiivaic, saui the Development Co. had declined the supply of a. special domestic water supply as it was not in their agreement. Cross-examined, he had retired 12 months ago. He had a dam which he kept filled a I his plaee and did not know of difficulties with the Health authorities if water was classified as ! domestic supply. Robert Horn said he knew the gully in which Sanders was applying for the ■ right out of and had never seen rhe race applied for in use. 1 Cross-examined, this witness said he ! knew the race but was somewhat hazy as to the oeeasion of his visits. I George J. Summers corroborated jrel vious witnesses as to the water in the j gully and the water in the small laec j There was always water in li*i> race since he was there. | Cross-examined, .he lied of the stream was overgrown with scrub and j verv rough. Finest Joltv, nun nf Hid C'""nwell Racecourse trustee.-, for many sears, called by applicant's counsel. -aid ho 1 Knew the Devefopmeot Co. bar, a right I ~,|f +h»'j > reek *<>■>;. 1 vJ not

consider this a danger to the Racecourse right at the time hut sinco thin the caretaker advised them that if the , racecourse water was turned out there i was practically nothing for the I development Co. There had been no trouble with the Development Co. about tho right. The trustees had never tome to any arrangement with the company about the water. Provided the water was coming into the creek md it was gauged the trustees would have no objection to the grant. Cross-examined, experience had shown that, except, when there was a flush or heavy rain, the extra water w.as .'rot in the creek. John Morrow, who was manager ta the Development Co. for 6$ yeans, until a few months ago, said »nc eompaay was entitled to divert i-ioth fin head by tho race that was attacked. Hie last irrigation season was a very ucL one and tho w ater was not all required. They had a new man who nad been instructed twice to bring in !hh race. Ic was in the season before, and it was a very small race w'hich would easily be put out of operation by taking sheep over it, etc. There had been discussions with Rowe who had often ;arl that many times the company's .-iuth of a head was not there and ho had proved this in i0"33- The water from i the little race wont into the irrigation , supply fcM use of settlers for domestic purposes, watering stock and irriga- I tion. There would he more likelihood i of leaks in the race in the winter time as they did not pay the same attention to it as thev did in the summer.

Cross-examined, he was confused about the names of the creeks. Ile 1 knew at once which right was Attacked. He saw this race brought in about September, 1935, and could not account for the fact that Sanders said the race was not in and flatly contradicted Sanders’ and Longshaws’ evidence on this point. They did not repair the head box as he considered it unnecessary. Rowe %ul never -aid he would not let the company take water out of tho creek at all. The work done on the race now had been done to clean it out. He admitted this was done after the application for it was made. Denied that he had a guilty feeling about this race w hen he cleaned it out. A neighbour, Mr M. Ritchie, told him the right was attacked and it was not for some time after that the race was cleaned out. There was no legal arrangement with Rowe or the Racecourse Trustees.

Nicholas John Rowe said he had been the tenant of tho Racecourse Trust for 17 years and knew the race in dispute. The water was running in the little race in the first weeks in December. 1936. He did not clean tho race or touch it in anyway and it was not in good repair. During the 193536 season the company’s raceman cleaned it out and he saw' water running in it. He was up four or five times during the season and there was a little water in it. There had never been a tenth of a head to spare in that creek. On 13th July lie measured all the water coming down the creek and it went through a one and a-qunrUr inch nozzle set in a two inch pipe. Cross-examined, he was not up at the race since December or July. He had no occasion to go up at any time.

particularly if other people leave the race alone. Sometimes he had no occasion to go up tor months, as long as the Company was not taking- water. During the last six years he had had no bother with the water. The race had not l>een cleaned out when ho was up turning hi.s raw in. Ho did not think the gully made one twentieth of a head. He would not be better of if the Development Company’s right was cancelled. If someone else got it he felt there would be bother. There may not ba\e been any need for the Development Coy. to clean it in Mav. He also contradicted tin* evidence which was given to the effect that llio little race was in bad repair and never used during the last two years. Malcolm IHtehie. farmer. Rippon- \ ale, said he knew the lit tle race out of tins gully. It was on his land. He noticed a dampness in it in the 103 P-37 season where water had lieen in. It would not take much to turn out of this race. During- the 1P35-3O season the race carried water. It hau been cleaned out in the spring- of i<j3s. He knew another gully. h ergusor's gully, where the Development Co. held a small right out of also, Cross-examined. lip remembered the race being cleaned out in Mar. It was not in a very good state 01 reto this. Kverytime he went past there was a dampness in the little race where it had been running and evidently been tunnel off. It could nut be an overflow from the creek. He saw the in the race several timps. All seasons before the last he saw water running in the race, During the previous season he had seen water in it.

To the Warden: There would only Ibe about one fifteenth of a head in ' the creek with the raeecou.se water out.

Mr Jas. C. Parcell submitted several authorities in supjiort of argument against various legal points raised by counsel for the objectors. They were fqerp iFrpKtitenlifs 'vhicji cpuljl and should bp amended. He submitted the defendant was not entitled to ask the benefit of the court and he suggested it was almost contempt of court to alter the race after it was attacked. Tt was a practice which should be brought to an abrupt end in tljo Interests of justice and they had no rigljt to expect tlje sympathy of the court.

The Warden reserved his (|eejsi((i|