DISTRICT COURT.-APPEAL.

Mount Ida Chronicle, Volume I, Issue 27, 6 August 1869, Page 2

DISTRICT COURT.-APPEAL.

(Before Ms Honor "Wilson Gray, Judge.) ' I SCjOTOESTATIAJSr WATER BACE CO. (iLEGIS-i TEBED), APPELL-OfTS V. o'co2Ofoß A2JD GILMOUB, BESPOISTDEXTS. j Tn this case, which was heard at the j last sitting of the District Court a^' Naseby, judgment had been reserved, in order to enable the Judge to see the ground. On Saturday last his Honor < Judge Gray delivered his judgment at" 4 St. Bathans. In doing so, he remarked that the formal decision would be delivered at the Court at Naseby, on Lis next visit, but that for the satisfaction of the parties he had determined instate there what decision he had come to. .:, His Honor said that he had resolved";; to see the ground before giving his de-J. cision, because he felt diffident about! interfering with the verdict of assessors! who had had that advantage, HavinJ examined the ground, he had come Ijfl

the opinion that before any races taken across it the hill was, so to speak,. very rotten, and likely to yield to 'the action of water. The yielding to that action was very likely to be accelerated by the removal of the underpinning of the hill. One slip had evidently taken place before the water races were brought on to the ground. Very postsibly the first fall might have happened even if there had been no water races there. Great caution was, therefore, to have been expected of the raeß holders. If they omitted any precaik tion, they did so at their own risk The question had been raised as to whether, in a long race, the owners were obliged to take special precautions throughout its whole length. He did not think they were; but it was their business to form an- opinion as to what, portions of requirei such special care, and they had to take the risk of acting on their own judgment in the matter. He agreed with the view that, in crossing known auri ferous ground, they were to be expectec to be especially careful. An erroneous idea seemed to prevail among raa owners, that they had only to take such precautions as were requisite for the safety of their own property. The rac< owner had only the right to carry hm

race over tlie ground specified in h license, and to have the natural su; port of the ground ; but he had no rig! to alter the condition of the land so s

to require more support. The taking! up of a claim on ground over which afl race ran did not increase or diminish the right of the race owner, who had*| an easement over it. No doubt, in the present case the race owners had rotted the ground considerably, and they could not be held to be entitled to the. extra support that might be needed hf[ consequence of the rotten state to which the ground was reduced. The claimholders, on thie other hand, had sucfl ceeded only to the right of the Crownl which had granted the easement to the 1 race owners, and were not entitled to withdraw the natural support of the, ground over which the race ran. * .Tety the race owners were not entitled to| impose any additional burden, but were; bound to keep their race staunchij Several races had contributed the loosening or disintegration of the! hill, particularly the Enterprise Eace. A conflict of interests had now arisen: The claim-holders were cutting a deep channel at the foot of the hilCand the process of degradation was thus being carried on above and below. It was difficult to say which party had dona most to cause the mischief. It w^

Very tne raee mignt nave ■ stood claim liad not been forked below ; Wid, on the other hand, « was possible that the mining claim flight have been worked further aa ithout inconvenience if the races had not been running above. . t was a Common Law maxim that a man who had contributed to a damage could not. recover for it; but it had been held, even at Common -Lj&w, taat where a man by his gross negligence had helped to cause a damage to another he might be made to pay, even though the person suffering the damage had himself contributed to bring it about. In mining cases, he thought Equity would go further than the Common Law in the way of enforcing contribution. 'He had explained taus much with the view of checking &-.. Llr litigation. In this case it had vjgf-feeen shown that the race had been ?: : .shifted, but with the approval of "the Warden ; and it had been urged, on behalf of the claim-holders, that the alteration was made without their consent. In reply, it was contended that, as the respondents had now succeeded to the right to'the claim on the other , , side of the hill, they were not in a position to take exception to the alteration of the race that had been forced on by ■ 'the original holders of that claim. It! was a nice question, how far the acqui-: sition of a claim carried with it any; liabilities undertaken by, or imposed upon, the original holders ? There' bad been litigation on this subject before,, and the Water Company had not got damages. They had since shifted the race again ; but they had shifted it back, and farther away from the respondents' claim. This removal, it was ~ argued, had invalidated the rights of the race owners. But such'was not the law : A trifling alteration of the dominant tenement would not invalidate an easement, provided it cast no additional burden upon the servient heritage. The ment might be altered to the benefit of the servient tenement, but not to its L detriment. Both parties had largely IK, contributed to bring down the hill. 1 Had he been an assessor he would,, he thought, have been disposed to give nominal damages, as showing an opinion that the miners had got to that point "* where they begin to share the risks. But., as the assessors had practically found to the same effect—namely, k that there was no substantial damage chargeable—he would not disturb their verdict. He would dismiss the appeal, ' but Avithout costs. .Very, probably fc further damage might, accrue, and a jury might be justified in finding for very substantial damages, and, perhaps, even the Warden might have to put on an .injunction: Yet, if the damage were to appear to be merely the sequence of what had already taken place, it was. quite possible that a jury might still rightly refuse to give damages. * Both parties ruust still consider that they had mutual' responsibilities, and not interpret'this judgment in the sense that either could proceed without taking the risk of how a jury might view any future damage.