THE COURTS.

Mount Ida Chronicle, Volume XXI, Issue 1074, 5 July 1890, Page 3

THE COURTS.

) THE WARDEN'S COURT, NASEBY. j Tuesday, June 24, IS9O. i (Before S. M. Dalglkish, Esq., Warden.) JAMBS SMITH 7. WALTER GEOKOE. J This was ft suit for cancellation of a water-race and i right, held by defendant, oil the ground that the race authorised to be constructed had never been so conructcd. J Mr. Rowlatt appeared for complainant, and Mr. > Kerr for defendant. The evidence of plaintiff was to the effect that his son, William Harley Smith, was granted a water-right heading just below the junction of Dimui's and Goat Gullies, Little K.vebum, on 30th November, 18S6. Shortly afterwards bis son applied to shift the head higher up the gully. He had net held the right long before he entered into partnership with witness, and they disposed of it to defendant, who cut a race which, however, was not constructed on the proper lines. Neither of the races granccd to witness's son had been constructed. His reason for bringing the present suit was that he was afraid George might shift his workings and discharge his tail-water below the present race, thus causing him to let down his water to defendant.

To Mr. Kerr: He recollected receiving a share of the purchase-money. George had not constructed the race on the lines laid down by witness's son, but had constructed it 16 chains lower down, or about two chains lower than the original application. He was sure the application was posted at the head of the race, but did not see the pegs. He vould swear positively his son did not out a portion of the race, but was not certain that he did not cut a portion of the one originally applied for. Prior to his son selling the race, witness was granted a right higher up the gully than the one in dispute. Before the transfer of the latter George commenced cutting a race, but witness did not know what his idea wa<, in doing so, as it was not at the point authorised by the right purchased from witness's sou. The object of witness was to get defendant's rights cancelled so his would then be the prior right up the gully. To Mr. Rowlatt: He*would not object to defendant lifting the water from where the race headed at present. All he wanted was to get the right which had been granted to his son cancelled. James Smith, son of the previous witness, gave similar evidence as to the race constructed by George being on neither of the lines as granted to W. U. Smith.

To Mr. Kerr : Witness was not in partnership with his father. His brother, William H. Smith, had been in Dunedin since January. He could not say whether or not his brother constructed a portion of the race originally applied for, nor if he levelled it. George's present race did not interfere with plaintiff's right. He supposed his father's object in bringing the case was to convert his right, which was a second one, into a prior right.

Mr. Kerr, after stati g the case for the defence, submitted that only a nominal fine should be inflicted, and quoted the case of " Frater v. Howe " in support of his contention. He submitted, however, that there was no case to answer.

His Worship preferred to hear the whole of the evidence.

Walter H. George stated that he purchased a right to construct a water-race from W. H. Smith about six months after it was granted, and within a month from purchase hs constructed the race on the line of Smith's pegs. At that time there was 50yds. of the race already constructed at the lower end. Not one of the Smiths had ever complained to him that he was cutting along che wrong line. The race had been in use almost continuously from the time of its construe tion. At present it was leased to a party of Chinamen. When he bought the right he was "not aware that application had been made to shift the nead further up the gully. He did not receive the papers until after he had cut the race.

In cross-examination witness .stated very positively that his race was constructed on the lines laid dowii by W. H. Smith. Philip Brown stated that he assisted defendant to relevel nearly the whole of the race, and they went over the old levels of Smith exactly. The old'levels were marked by stones and sods. The race was cut substantially on the lines of these levels. Ah Quong was also called to prove that the race had been used, but counsel for defendant admitted the fact, and his evidence was therefore not taken. Mr. Rowlatt asked that an adjournment be granted so that the evidence of W. H. Smith might be obtained, but Mr. Kerr strongly objected to such a course as being grossly irrtgular ; and Mr. Rowlatt at length withdrew the application. His Worship said he felt convinced of the truth of defendant's evidence, and he would inflict a fine of Is without costs. BROWN V. BOSH. Peter Bush was sued by A. M'G. Brown for, on 3rd, sth and 6th June, wrongfully diverting water from plaintiff's race. £1 damages was claimed, and plaintiff asked that defendant be restrained from future interference with his right. Mr. S. E. M'Carthy for plaintiff; and Mr. G. F Rowlatt for defendant. Mr. M'Carthy said that this right was also the subject matter of another action of a similar nature some time ago, in which plaintiff admitted the offence and was interdicted from interferi g. As part of his case ho would put in the complaint, summons and record book.

Mr. Rowlatt objected to this case being opened, as the oases were different inasmuch as in the present case damages were claimed while in the former this was not so.

Mr. M'Carthy said he wished to bring before the notice of His Worship the effect of a judgment between the same parties and in reference to the same subject matter. He quoted from authorities to showthat when once a matter was litigated on between certain parties neither of these parties could re-op"n the same matter. If the nature of the defence in the present case was to impeach complainant's ri"ht or to raise any question about the right, he would object to it, as no question that could have been raised in the last case and was not could be admitted now, and defendant could not now try to upse auv admissions he then made.

Mr. Rowlatt said the former case was pract rally undefended, and the cases were not the same. Mr. M'Carthy contended that so long as the same right was involved it must be held to be the same, and quoted extensively in support of his contention. His Worship said he would reserve the poin A. M'G. Brown deposed that he was the owner of water license No. 48»r>. Defendant had a race hcadin" out of Enterprise Gully higher up than that of witness, lie was at defendant's lift on June 5, on which date about 2J heads of water were running down, all of which had been turned into defendant's race. He was also at same place on the Gth June in company with N. Reed, when all the water (fully three Government heads) was being again taken'by defendant. Previous to this witness had given Bush a notice (copy produced) to discontinue his illegal action. Defendant had taken no notice of the judgment of the Court in the previous action, hut bad continued taking the water ever since.

To Mr. Rowlatt: Witness's license was granted in March, IS7I, under the Uoldflelds Act, but had since then been exchanged for a license ur.der the newMining Act. He assigned all his property on feb 4th, 1375, to trustees for his creditors, and'the document produced bore his signature. Mr. M'Carthy objected to any evidence of this description being admitted. He wished His Worship to understand that he objected to the admission of any evidence tending to contradict that given iu th" previous case.

His Worship said he would take a note of the objection, but tho case must go on. Cross-examination continued : Witness understood that his creditors at that time had since written off the amounts owing by him. He had never had any re-assignment of the property. He was not using the water in dispute himself, as he received a Hogburn head of clear water from the Government race from Reed and Party in exchange for it. There was no natural water in the gully available for his right. He relied for his supply on water discharged into the gully by other parties above where his right headed, and this had been the state of affnira ever since his right was granted. Witness did not lose throii"h Bush takirg the water, but Reed and Party did. There was no definite agreement between him and Reed and Party as to the supply of water, it being a matter of chalice on both sides.

Nicholas Reed gave evidence as to seeirfg about three heads of water iu the race on the 3rd and r.th, all of which was being diverted by Bush; and also as to the arrangement existing between his partv and plaintiff regarding the exchange of water. Alfred Kyforcl also gave evidence corroborative of that of the previous witnesses with regard to the quantity of water being diverted by defendant on tho 3rd June.

Mr. Kowlatt at some length urged that there was no case to answer. He contended that Brown had no right to the license, having transferred it to Messrs. Brooks and Newman on behalf of his creditors ; and also that lived and Party were the proper persons to bring the pri-scnt action. Mr. M'Carthy having replied, tlu Worship decided there was a case to answer.

(Juorge Murdoch, farmer, Ewcburn, deposed that on 27th May, 1873, he bought a right to 1 head of water in Enterprise Gully from Robert Ross, and used it about live years, when he sold it to the Enterprise Company. There was not always one head of water in the gully, and he was in the habit of using the tailwater discharged hv others higher up—as milch as the race could carry. He recollected Brjwn having a race in the same trull.v lower down, and Brown never objected to his using the tail water.

To .Mr. M'Carthy :—When ho bought the right. Brown also had a race In the gully. Witness had often taken as much water as his raco would carry when Brown had nouo.

To Mr. Ilowlatt:-After his right was satisfied there was no natural water in the sully for Brown when the latter applied for the right. William Newman, manager of the Enterprise W.R. Co., who own the race in dispute, nave evidence similar to that given l>y the previous witness. On 3rd June witness was discharging into the gullv as tailwriter about 2.J (iovermiicnt heads; on tiio sth 1J >'.oveninient heads ; and on the Uth 'JJ heads. The race used hy Mush would carry half as much water again as the Enterprise Coni).a:iy discharged on those dates. He hail not seen the nice for three or four wocks. Brown never objected to the Enterprise Company taking as much water as they could tret. Peter Hush, the defendant, stated that for the past IS mouths he had rented the race from the Enterprise Company, previous to which he was working for some years for the company. It was the custom of thy company to take as much water as they could get. Witness had been u4ug the water about'nine months before any complaint was made by plaintiff. A number of impoitant points were raised hy counsel in summing up, and Hl« Worship r.jicerved jndvmwi*