WARDEN'S COURT.

Mount Ida Chronicle, Volume VII, Issue 374, 5 May 1876, Page 3

WARDEN'S COURT.

(Before H. W. Robinson, Esq;, Warden.) Grayson and Peterson v. Guffie and Inder.—Claim, £152 7s. Mr. Hertslet for complainants, Mr. Rowlatt for defendants. In this case, commenced on the 28th ultimo, a great quantity of evidence was given in support of the complaint, and for the defence, which occupied the whole day. At the rising of the Court on that date the Warden reserved-judgment till tho 2nd of May, when the following decision was given:— '

This case, as was at the outset remarked by counsel for the defence, seems to resolve itself into a question of the privileges appertaining to priority of grant. Simply stated it amounts to this :—lnder and Gutfie, the defendants, are the holders of a tail race at Clarke's diggings, gt anted in January, 1872. This race was to be 1000 yards long, with a maximum, width of 100 feet, and a depth of 60 feet. Grayson and Peterson, the plaintiffs.are ownfcrs of a head water race granted, in .November, 1872, or nearly a year after the tail race of the defendants. The line of this water race intersected the line of the tail race, and the plaintiff's made it across that line, and had it in use before the owners of the tail race had brought their work up to the point of intersection. Finding the head race.an obstruction to the carrying up of their tail race the defendants requested Grayson to make' way for them to proceed with their work by cutting a new channel for the temporary conveyance of their water until the gap should be made, and by Burning over it afterwards. This'was on the assumption thai as holders of the prior grant they hud a right to require Grayson und Co. to flume. Grayson disregarded the warning. GuiHe continued to take up the large tail race, and on December 6th and 7th a portion of Grayson's race whs broken away and a gnp obtalilkditsd. Grayson and .'Co. theo made ; the temporary cutting, as had boon

suggested by defendants, and, alter two days'loss of time and water, had their race again in working order. Grayson and Co. then laid a complaint against the tail race owners for'a penalty for unlawful interference with their water race, and the Court, holding that the race had been broken through " without the consent of the owners or the authority of the Warden," imposed a penalty of 20s. and costs. This decision was, on appeal, confirmed by the District Court. It is now, by the present action, sought to recover from the, owners of the tail race a sum of £101175., estimated expense of fluming Grayson's race across the gap, and £SO 10s. for loss of time and water for two days in consequence of the breach. In' the hearing of the present case it has appeared necessary —there being no admissions to take proof of everything, and, on consideration of the evidence adduced, I may say that I find it established that Guffie's tail race is the prior grant, that Grayson's water race was the first constructed at the point of intersection, and that Guffie's working in the tail race caused the breach in Grayson's water race as alleged in the complaint. It remains, therefore, only to be considered whether defendants are liable in damages, and, if so, to what amount? And, first, as to the question of liability:. It is argued for the plaintiffs that the fact of defendants having been found to have " unlawfully interfered " with plaintiffs' race gives them a right to claim damages for loss sustained in consequence of such unlawful interference. For the defendants it is contended that the mere fact of their having been held to have " unlawfully interfered " with Grayson's race does not in itself determine any question of right a3 to the liability to flume ; that the priority of right to the tail race must necessarily give priority of right at the point of intersection ; and that the accident of Grayson being the first to reach that point with his race cannot be held to derogate from the priority so long as the prior grant is legally in force. It has been shown, not only that the prior right has never been cancelled, but that it has been specially affirmed as in force in.1874 by the reservation of its line through the very ground now in question, which was at that time granted as a mining lease area to Messrs. Guffie and Latham. It has also been shown that Guffie and Latham first applied for the mining lease in May, 1873, and that Mr. Gogarty (the then owner of the tail race) at that time lodged the objection, which resulted in the line of the tail race being surveyed and laid down on the plan of Guffie and Latham's lease area. It is not easy to believe Mr. Grayson's statement, that he was not aware of the existence of the tail race right when he cut his head race acroas its course. Mr. Greer's evidence is positive, that four years ago the then owners (of whom he was one) had cut up the tail race to within fifty to eighty yards of their lease area, and that the course of it beyond had been marked by the cutting of sods as far up as the Kyeburn Itace. Guffie's evidence is also clear as to the tail race having been begun in 1872, and carried up, partly in the rock, to where if diverged from Tait's Gully; also as to its. being marked by cutting the sod as far as the Kyeburn Kace, and to the fact of its being cut about twenty yards above Tait's Gully when Mr. Gogarty died, in 1873. Guffie also deposes that he himself informed Grayson, about the end of May, 1875, that the tail race would intersect his water race. Taking into account all these persistent assertions of ownership in 1872-3-4 and 5,1 think it must be held that, even if Mr. Grayson was not aware of the existence of a right to a tail race at the point where his head race has been broken through, he had at least reason to be aware that such a tail race was being brought up, and he could easily have satisfied himself, if he desired to do so, whether it was legally held or not. It is true; he deposes he gave notice to Gogarty and Greer, the then owners of the tail race, at the time he applied for the head race, and that they lodged no objection. But I do not attach much consequence to this, as it is by no means usual for miners to object to other races crossing those held by them, the custom that the owner of the inferior right shall flume being so well understood and commonly acted uponi In this instance the tail race, 1000 yards in. length, was a costly work, likely to occupy a considerable time, and it was not necessary that the head race should be flumed until the tail race reached the point of intersection. The grant of; the tail race was made without any special exception, and it must therefore be taken' as a grant to authorise an open cutting. The weight of evidence also favors the belief that only by an open cutting could, the owners obtain the full benefit of the i grant. No subsequent grant to Grayson I could derogate from that grant; and it I seems to have been continuously enjoyed by the original grantees and their successors, the present defendants, upon the principle that, " in the absence of strong evidence to the contrary, or of some adverse possession, the continuous possession of any part of any district of land held under one title is itself continuous possession of the whole." (Mulcahey V. Walhalla Company.) It remains to be seen whether the construction and use of Grayson's race across the line of the tail race before the tail race was brought up to the point ' of intersection is such an " adverse possession" as todo away with the presumption of a possession in the owners of the tail race. It is not pretended that the owners of the tail race ever abandoned their right, but merely that they did not assert it, as' against Grayson, by objecting at the time he was applying for and constructing his. race. But to establish an " adverse possession " there must be not merely negligent acquiescence on the part of the true owner, there must be an assertion of right on the part of the accidental occupier, and that assertion of right, I think, should be shown to have come to the knowledge of the true owner. This has not been shown, and I cannot, therefore, hold that any adverse possession has been established. I am, therefore, bound to consider that the plaintiffs have never been relieved from their obligation as the holders of an inferior grant to flume over the tail race of defendants. I have already referred to the contention for plaintiffs that the mere fact of defendants being fined for unlawfully interfering gives plaintiffs the right to claim payment for losses sustained in consequence. But I caunot agree with that view of the relative rights of the parties. No doubt the defendants asserted their right in a Wrong way, and they were punished for so doing. Whether that were a sufficient punishment or not is beside the present question. They cannot be again punished for the same ofliw-e. But it does not. follow that thev had no right, or that thrir right was; i u

any way affected. ,J2y.the present action, it is sought to saddlei them with the expense of fluming Grayson's head race over .their, tail rs.ce. , I have already indicated my opinion that they' are ■ hot liable, but that the onus of fluming rests' with theholders'of the inferior right. ; - With re-?, gard to the los 3 of time and loss of water for'which £SO 10s. is claimed, it has!been, shown that the plaintiff's had ample warn-' ing, and were not only asked to take steps ! to secure their property, but/were offered' assistance in the shape, of the loan of materials, until the flumir'ig could Sbeproperrly erected ; and it is admitted that if they had adopted the plan proposed by defendants jthey .woula haye lost no water. I cannot, therefore,' consider them entitled' fed any damages oji'tnat'ScoreP Complaint dismissed, with £l6 costs and. expend sei of defendants-. - ! VJ - • •■' '■''■:

Ch'ristiafi" and] others "y. Guffie \ and others.—Mr. HeVt.slet' 'for- complainants',. Mr. l^bwlatt^fdr- 1 defendants. fjla : im £ll3 ss-7-bein'g:allege'd. damages to waterrace between, July, 187.4 and March 1876 V Mr.EoVlattobjectefitothe Courts jurisdiction contendingthat under the 106 th section' of the Goldfields-Act - proceedings for any infringement -.of Goldfields Acts or regulations must be brought according to the law for'the time-being in force lor regulating; summary proceedings 'ibefore justices o£ the Peace, and referred.to the ruling of the Court in previous .cases— Grayson" v.'Guffie,''and:HoweV.' Frater,' at Maerewhenua—-when;the .point' was raised by Mr. Stout.' Mr. Hertslet, ..ifi, reply, said there had" been ho ruling of the • Court, but that the objection raised by Mr. Stout had simply been acquiesced in by the other side Jin the case of Howe y. Frater, and the complaint amended by consent accordingly. After argument, and it being fouad that .the Court had not given any positive ruling, the .Warden gave it as his opinion that the iiniitation of six ; months, which applied to summary proceedings before Justices, did not apply to ; any Court constituted under the Goldfields Act o'f 1866. In the 106 th section of that Act there was an ambiguity, but he was inclined to consider, that, in that"section, the words—"and'if' must.be read as disjunctive, and that the limitations of the of the Peace Acts in regard of summary proceedings applied ..only to proceedings that might, in default-of a Court constituted umier the-Act, be taken before aHesident Magistrate or Justice of the Peace. After some, other -objections had been- raised. Mr. Howlatt pleaded a general denial; Mr. Hertslet then put in the miners' rights of plaintiffs, when it was found that, though purporting to be renewals, two of them did not go back to commencement of period for which the complaint was laid. Mr. Hertslet said he would be prepared,, before the case was closed for the complaint, to put in secondary evidence of the existence of these miners' rights, which had been lost by Christian. A quantity of evidence was then taken to-show that tailings from defendants' Workings' tit l Clarke's ha<d found their way into complainants' race, and had entailed ah expense for loss of, water and labor during nineteen days amounting to £ll3 os. iu all. The evidence Svas similarr iu:»nature to .that; tendered 'in other cases f which have arise~h between the same parties, as reported, from'time to time. At the conclusion of the evidence the Court adjourned for'half an hour to enable-Mr. 'Hertslet to haVe-the necessary search made in the ; office, of the rßieceiver of-Gold Eeyenuerfor the, record.: qf the issue of'the two miners rights that were missing, and for the necessary declaration 1 to be prepared"."When the. Court 'resumed .'Mr. Hertslet put- in a'sLatutory declaration, made by J. I?.' (Christian, as to the. loss of, the miners rights., He then called upon the Receiver of Ee-venue, who was present in to produce the records of the office, 'tiiit that officer ;declined, .ho had not been ..summoned.: TJnder shese mr. v Hertslet asked ./or. of to enable him'to obtain a, summons to. pel thfc '' B/edeiver to', produce' record Hearing.adjourned.accqrdingly to May. 26—CotnpTaiiiaats to pay costs of defendant^''£3 l&Jr' :< '' : '"'

Mat 2nd, 3ud, and 4th. ~X W. Robinifoii, Esq;,; .Warden.) : ii Q-uffie; and Jndec.y.-.Grayson'and'Peter-son.—Coniplaint in this case waa_tbat,i on' the 10th April ? the, defendants were,j on 'the' coniplaint'- d£ the complainants, ;ad--' judged* to have unlawfully interfered and encroached;upon.the tail race of the complainants .by i running .water- acrgss the same on the :s3rdjand;J24tb.'dayTof Feb- ; ruary, and also were ordered to pay £2O damages'for such interference', 'and costs', and to remove from the encroachment, within four days;, also,?that the defendants did unlawfully interfere with and encroach upon" the said tail race, and that the defendants have,.'siiicefthe.expiration of the said four days'," Trdm the 10th April, 1876, further encroached upon and interfered with the said, tail, race of the complainants by running water across the same on the 15th and 18th 'April instant, and did not remove from rthis encroachment on the saidtail race, in obedience to the judgment of/the Cbia'rt.. Claim therefore .made for £'2s9i3s. Ba.,Vandi an order asked to remove,defehda£its from jthe; tail race of complainants,''.'' On dants' request tbe-case; was beard.'tefore assessors;— Messrs., Thomas G-rpse, Eptiert Maclatchy, Simon Hewitt, and William B'oyce. < ThW ca'se. was adjotirned to >.8.. a.m. 911 Wednesday, the War-: den and assessors to Visit the ground. Tbe Court resumed,its sitting at |faseby at 7,p.m. on .Wednesday evening,,fitting until ,2, a.m.' Thursday. morning,•; /when judgment, was the; defendants pay. £SO damages, and costs :£]4, and-that.the defendants be; forthwith \ removed from the encroachment. ".Cost of. assessors, paid by defendants, £9.. ; ;