WARDEN'S COURT.

Lake Wakatip Mail, Issue 2929, 1 August 1911, Page 5

WARDEN'S COURT.

QUEENSTOWN, THURSDAY, JULY 27

(Before H. A. Young. Esq.. Warden.)

J. R. Crowe and H. Campbell—Appli cation for a water race from ontlet of Precipice Flat on western side of Bucklerbum river, Glenorcby District, and for certificate of abandonment in respect of name racegrauted toJas. Dunery on 29tb March, 1908. An application was also made for a dam in the same locality. Objected to by Duuery. Mr W. Macalister appeared for the applicants and Mr W. Turton for the objector. Counsel for applicants said that objector, beW that the water racejlicense was connected with the dam, but he considered that when the dam was half a mile above the head of water race, there was no connection between the two. To protect themselves the objectors should have applied for a drainage area under the Act so that other minera would know the exact area from which the race derived its water. It was decided to take Mho two applications together. Mr Macalistcr outlined the case for applicants. He said that the race in question had been constructed t*tween 40 and 50 years ago. The title had been exchanged twice—in 1886 and 1906-and in July, 1908, the license was transferred from J. K. Birley to J. Duuery. For the apace «»f 21 years past the race had been unused except for the last 8 yearn when it was used intermittently by the appli- j cants. (Mr Turton objected to any reference to the history of the nee beyond the time when the title was exchanged in 1908, as it must be assumed that all the provisions of the Act were complied with up to that date. Counsel cited a similar ease. The Warden noted the objection and allowed the case to proceed). Mr Macalister considered he was entitled to go back beyond;i9o6;,and, continuing, said that no use whatever was made of the race by the original holders for the purposes for which it was granted so that it bad been abandoned. Although the race was used by the Campbells for eight yean, off and on, there never was any suggestion madejthat they should pay rent for it W hen the exchange was made in 1906 and the transfer in 1908 there was no notice everfserved on his clients. Nothing would have been said uow only for the applicantslapplying.fprjmo*? water. It was their intention, moreover, to spend £4O or £SO on the dam. Counsel therefore asked for the right to the race and dam. Evidence in support of the applications was given by Mr C. E. Gudgeon, mining agent, and F. R. Crowe, one of the applicants, who stated that he pegged out the intake and terminal points, that he joined H. Campbell in March last and it was proposed to construct a dam so as to extend operations. The dam was 20 chains above the bead of the race. No one ever interfered with them when tbey were using the water-J. Campbell said that be remembered the race being in existence twenty years ago. There was no dam there then to his knowledge, but two Chinaman bad constructed one siuce and also a race connecting with it Witness and a man named Hill used the race for two years, then some Chinamen occupied it and. ".subsequently, a man named Peter Wilson for a few weeks. Witness got no one's permission to use it, nor did he pay nut or rates for it Before the race could be used it bad to be cleaned out from end to end. His brother, with whom he worked for some time, used the race for the last four years for bydraulicking purposes. By the Court: Don't kuow whether his brother bad a license or not. H. Campbell, one of the applicant.*, deposed that he knew the race for i 7 years. It had been worked by the parties already named. Asked Mr J. K. Birley's permission to use it and was to have paid rent for it—ls per week—but did not do so because he thought he had as much right to it as he (Birley) did. The race, called Birley's, had been ab-indoned for a number of years. Neverhadanyaccountfor rent. Was asked for it in May, 1908, but never since. Just used the race off and on during the time he had it Notices were posted on the race by himself and his mate. The dam made by the Chinamen had been in existence ten years. Neither H. Birley nor anyone else ever asked himifor any rent for the race for the last three years. There was water enough to work his claim for three parts of the year. Witness paid two lots of rates to the L C.C. of 5s 6d each on the race. Under cross-examination, the last witness said that he did not know whether the other users paid for the water. He never agreed to pay 2s 6d for it and the rates. Remembered having a conversation with Birley in his hut when the latter said that he had sold some pipes iu use by him (witness) to W. Paulin, but witness never said he would notify Paulin when be was done with the water or that he would return pipes. He n»y have paid rates for j four years. Don't know why he did so, but reckoned he would pay them when the notices were sent. Gave H. Birley several lots of gold to sell for trim—one lot valued at £1 2s 6d being placed against a bill but not for rent Recollected getting letters (produced in Court) |from H. Birley, but denied having paid a £1 for rent By the Court* Did not know that there was any license in existence for the race. Admitted that he made a mistake in pot having got the right cancelled. His brother gave Birby gold for pipes but not for rent He never received any receipt Birley, in May, 1908, outside the hotel, demanded rent from him for the water but be declined^to'pay. Re-examined: The gold belonged to bis brother. Mr A. J. Thompson, Clerk of the Court, produced the Court records and was examined on same.

Mr Turton submitted that the water race application should be struck out as the race was not pegged out in accordance with the Act, there being only two instead of seven peg*. ' Mr Macalister contended that the spirit and intention of the Act had been carried out. Iu this case the application was for an old race which was cut for its whole distance. Therefore pegs at the intake and terminal points was sufficient. The Warden nn'eJ the point. Mr Turton britfly reviewed the case for the objectors. He reiterated that the] Warden could not go back beyond 1906 when the title was last exchanged. Evidence for the objectors was given by R. McMoran as to rent bring payable by Campbell ; by the County Clerk as to rates paid on the race by H. Campbell. J. W. Pauliu said that he had arranged to take the plant from Mr Birlcy when the Campbells were dono with the race. Lent four ppes to Campbell, but tbey had never been returned. Birley left him in charge of the race when he (Birloy) left Glenorchy some years ago. A pump which Campbell got from Birley was not paid for. H. Birley, on behalf of the objector, stated that the race originally belonged to his father and was subsequently transferred to Mr J. Dunery. Witueas mentioned the several parties who used the race. The Chinamen got leave from his

father ten tears ago to construct the .lam. The latter paid rent for the race. 11. C-impliell got the race on the understanding that he paid rent for it and also the ntw. On the 15th April, 1907, licfuie Wing the Head of Lake, he left race, etc., in charge of W. Paulio. He then said that the rent was to be 2s 6d per week. Asked Campbell for tbeTrent several times but only received £1 2s6d. He always said that he had no money or was doing nothing. He (Campbell) never stated to witness that be had as much right to the water as the owner of the privilege. Witness also wetit into the question of the pipes lent to H. Campbell and which were neither returned nor paid for. The rates were paid up by Campbell for four years. Witness was to look after the race for Mr Dunery. There was nut enough water in the race in dispute for mining and if the dam wis granted this would be the means of cutting the water oft.

Cro-'s-examined : Witness' father paid £26 for the right of the water and Dunery was charged .£2O for same by Mr J. K. Birley. Nevi-rtold Mr Crow about the rent for the water. Did not know what Dunery wanted the race for and could not say why he was not here. He contradicted the statement that the dam was 22 chains above the head of the raL-e—it was not 12ft. Witness never rendered an account to Campbell. He had waited two seasons to get the water from Campbell as be wauted it for irrigation purposes. Never pressed Campbell for payment as he was in hopes he would get gold enough to pay the rent and his own hotel accouut.

By the Court: The race is the outlet of the awarnp. It partly goes down the gully. Believe that there was some money paid for the race by Dunery. Don't know auy tiling about the sale. Counsel then addressed the Court at some length and argument was, taken on the question of title and pegging. The Warden said that he was satisfied that it was not necessary to go back beyond March, 1906, the date of the last exchange of title, and he was also satisfied from the facts brought forward that the race had been let to the applicants. Under these circumstances it had not been abandoned. In regard to the marking out of'.he race, the Warden did not think that there was a substantial compliance with the provisions of the Act; the application does not state that the race applied for is the old abandoned race. With reference to the dam, be was of opinion from the facts that he could not .grant a water race out of the swamp as the water for the oxisting race was drawn from this swamp which is the source of the stream that runs down the gaily to he Buck erburn. At the most only a second right to water could be granted to the applicants. The application for the dam was refused.

Mr Macalister submitted thaf'as the use of the race had been very intermittent the objector was not entitled to costs.

The Warden ruled otherwise and fixed costs as follows :- Water race application : witness expenses, £6 17s ; court fees, 8s; solicit, rs fee, £4 4s. Dam application : Court fees 2s, solicitor's fee £1 Is ; total costs £l2 12s.

J. T. W. Paulin and others.—Application for water race, Junction Creek, Mt Judah, Glenorcby district. —Granted. G. McNay—Residence site, Smith's Terrace, Upper Shotover.—Granted.