WATER RACE MINIG CASE.

Otago Witness, Issue 2924, 30 March 1910, Page 28

WATER RACE MINIG CASE.

iDEcisrON. ; -;. Our■ Nasebv correspoiidentirenorts:that a rriininer. .>' caso :: of ; considerable interest throus-hout Kveburn Disrerines and Nasebv was coiicludeo on Tuoadav in the* Warden's Court before Mr "R. W. 'Porrifct. P.M. The r>la.intiff= Messrs M'T.ill&n Bros., for whom Mr n UJ, D»vev onnearod a.r\d the defendant Ptenhen Beer (Mr M'NeU). The of the judgment was as follows:

! The defendant purchased the Naumai water-race in May, 1905, and used it until December. He then left the district,.and worked at Miller's Flat until the end of 1906, when he returned to the district, placed the race under the charge of his brother Leslie Beer, and then went to the Malay States on a mining engagement. About October, 1908, he returned to the district, and found tha portion of the.race from Pipeclay Gully to the tail in bad repair The pipe conveying water across the tellings channel in Pipeclay Gully had been removed bv his brother Leslie. Beer in the spring of 1908, and taken to his claim for use there When defendant returned in i9OB no water was flowing in the lower portion of the race, owing to the removal of this pipe. At intervals since then the defendant has forked at cleaning out and repairing this lower portion of his race, and in some places has had to entirely rebuild it. The intervals between the periods of repair he accounts for by being stopped by frost and snow (the year 1908 being the year of the big snowfall), and by. want of water and means. At certain periods he has carried on sluicing operations, and on some of these operations has apparently endeavoured to make his work dovetail m towards his operations on the race, and 'this riart of his work is relied upon as being work done in connection with the race. That this work can be so looked at is borne out by the" evidence of two independent witnesses From that time until the present the defendant has done a considerable amount of cleaning out and repairing on the lower portion of his race, and except in a few places the race is in good order, and a few days' Work will complete it down to opposite Blanchard's house. In 1908 the plaintiffs recognised the race as a prior . existing right, anad served Leslie Beer, defendant's brother, who was in charge of the race, with a copy of their application for a tail-race. This tail-race carried their tailings into Pipeclay Gully, from whence they flowed down the: gully and down a channel left under the pipe line in defendant's water-race. After . the removal of the pipe by Leslie Peer in 190.8,,: and after defendant's subsequent action in,May, 1909. in sluicing tailings into his race at the foot of Pipeclay track, .-the. plaintiffs took, no steps to keep this tailings channel clear, and consequently the tailings have filled the channel and spread right across the gully, and by Christmas. 1909, that part of the race was completely covered .to a., depth of several feet. On January 9, .1910.. defendant spoke to one of the plaintiffs about cleaning their tailings out of the race, and on the sth February last he served them with a written notice to do so. The plaintiff's answer to that notice is this present, action for forfeiture. At the hearing the plaintiffs alleged that their reason for not keeping: the tailings 'channel.- clear was be cause they had been led to believe bv,the actions of defendant and his brother Leslie that the lower part of the race was abandoned, that no water "had flowed in since the pioe was removed, and that it was in bad repair. ' They frankly admitted that their only object in bringing the suit was to have a clear channel for tailings down the gully, and that they did not want the race In this case the only matter" I have to determine is whether or not. during the past six months the defendant has incurred a forfeiture, and if he had Avhether the circumstances are such that a fine should be inflicted in lieu of the forfeiture. From the evidence it is clear that the defendant had no intention of abandoning his right. Intentional abandonment can only ;be. proved by cogent evidence of the existence of the intention —evidence of express intention or Unambiguous acts or. conduct; :p.n the othe.r : hand. the verv smallest act animo possidendi is sufficient to- negative such an intention (Mtilcahv and another v.r Walhalla G.M. Co.. 40..L.R., 40. Privy'Council, 1871). The Mining Act authorises the licensee of a water-race to " cut! construct, and maintain a water-race; and also: by means ot such race to divert and use water." and the words "and also" show. I think, that the race itself. a«d the right tfo the water are severable, and can be treated as such, and that part of the race can be abandoned without, affecting the right, to *he water. This right is a valuable one. with- a priority.back to 1867. F»-om the amount of work done, and the condition of the race at the present time T have come to the conclixsion that the circumstances iustifv the infliction of a small fine in.lieu .of forfeiture. -The defendant is fined £l. with costs (£8 10s). to be paid within 14 days. In default.decree of forfeiture to issue; for that portion of the /race from the right to the left bank of Pipeclay Gully. . ■. ■ - .. ••' ■