WARDEN'S COURT.

Thames Star, Volume VI, Issue 1781, 17 September 1874, Page 2

WARDEN'S COURT.

THIS DAY. (Before W. Fhaser, Esq., Warden.) THE DBAINAGE CASES. The case Imperial Crown G.M.Co. v. the Imperial City was called on this morning for the Warden's decision as to the matter of benefit, it having been adjourned from yesterday. The Warden said he had intimated last nightvthat he considered the Imperial City drained; and he had also stated that there was no. proof they had been working ia the mine*afefthe time the notice was given,, nor^-jnfcifeed,' since up to a month ago. The only difficulty was the menning of the word benefit intended by the Act. He had applied to the Victorian Order in Council as a good authority. He referred Counsel to one cas<e, which he had picked out as the only one where the word benefit occurred — bye-law No. 1, clause 3. Bye-law No. 1 reads as follows:—-The owner of any - machine which is employed in drawing water'from any mines, shall, under the following circumstances, be entitled to receive from the owners of neighboring claims such sums of nioney by way of contribution as are hereinafter prescribed—Provided that in cases where two or more machine owners claim contribution from the. same portion of ground, the machine owner only whose machine, from position j power, and other circumstances drains the same most effectually, shall be the person entitled to claim contribution under the' provisions of the bye-law. Section 3, read thus ; — The owner of any claim or lease which is being worked below the datum water level shall pay to the machine owner who drains the same the sum of three pence per lineal ysrd per week, by way of contribution ; and when the draining machine is situated in any line of reef the owners of any claim on the same line of reef, and not iv a parallel, and which is situated within 750 yards of the machine, shall, during the time such claim is under exemption, pay to the machine owner as aforesaid, the sum of two pence per lineal yard per week; andth;e owiifr of any lease, situated on the same line of reef, within 750 yards of the machine, and in which mining is not being carried on, shall pay to the machine owner as aforesaid the sum of two pence per lineal yard per week; Mr. Heskdh referred His Worship to clause 5, which he thought Vould meet the case. The clause reads as follows •:— The owner of any claim or lease which is being ,worked above the datum tfater level, and no work being parriecj. on b.elow the said level, shall be exempted from: pay:ng any drainage contribution on ac-' count of such claim. His Worship said the reason he had; chosen the 3rd section was because it was' tho only one ia which the word benefit occurred. Supposing defendants were enabled by the Pumping Association to continue their sinking they would be benefitted. They had get their shaft down 240 feet, timbered all the way up, their shaft was dry, and from the very fact that the shaft was dry showed him that the mjne was benefitted under the Act.

Looking at all the cireumiiaVces of.4h|>V case, ho must bold thatwUufc mine wa») bencfittod. ' v <%,^ "' v> ■ Mr. Macdonald then asked foraos'tUJffeV fact of the benefit having been established. ■ c His Worship considered it was: premature until the next point in the case, "* , namely the extent of the benefit, had been decided upon. ' ' After some discussion His Worship suggested that the parties to;~Hi*- action should come to some arrangement be,tween themselves ; he thought thit would be much more satisfactory. Mr. Hesketh said the whole question of contribution resolrcd iiself into a nutshell. 'Iho question was: what was it worth to them'to have the mine at tho 240 level dry. There had been no evidence to prove that they were -working in that level at the time the action had bee*. vbrought. <> §5> / Mr. Macdonald said as his friend hal I raised that point he would ask for an ad- I journment to confer with his learned I friend. ; ■ His Worship then granted an adjourn- ' ment till 12 o'clock that counsel might come to some decision as to the cause tcr '" be adopted. .- .-../,.,, . : A3IOTXHT OF ASSESSMENT. On the Court resuming— Mr. Macdonald said no arrangement had been come to: defendants Mind fault with their system of assessment. The Bench thought they might have' agreed to'some amount without reference to the system. They might have the case upset on appeal on the point of theTookey incorporation. Mr. Hesketh said that was the^ point.. ■ By coming to sn arrangement they might prejudice their case for appeal. ' They had made an offer for a year, but it hail not been accepted. He understood that the claim represented only ono two? - hundredth part of the area to be drained,, and the contribution claimed represented one-sixth of the amount required. The. . offer they had mad« would not prejudice . complainants with other companies. It was then decided to take evidence as to the amount of assessment, and some discussion ensued, when Mr. Hesketh suggested to leave it to the arbitration of ' two or three of complainants' witnesses. Mr. Hesketh was understood to say that if they were met in a reasonable way they waived the right to appeal. • ' It was then agreed that Messrs. Kernick, Dewar and Wright should decide by arbitration the amount for which an order for assessment should be mad* for sir months. > , ' Mr. Hogan said for the Otago he would '' . consent to a similar order being made.< Mr. Macdonald, for complainants, ob- \ jected : it must be understood that this case would not affect any other cases to be brough*|. IMPEEIALCBOWJJ G-.M.C. V. OTAGO G.M.C. The Court resumed at two o'clock with the above case. -.-,-. At the commencement of the case Mr. Kogan made objection to the incorpora- : tion of the Tookey Company, similar to < previous eases. ; Mr. Macdonald protested on tho ground'- - that when the case had been called on , previously it had bejp^ adjourned on re* ceipt of a telegranv %t|iting that defetf- ' dants would admit bene&4&tvd leave only the question of contriDTOon to be decided. ' *, ■ l '• . .- ■■■'Mr."■JtogSn admitted 1 the 'telegram, but contended that it would not admit of the construction put'upon it by thelearned counsel for complainants. A long conversation ensued, and the difficulty appeared more the result of-a misunderstanding. The Court did not see its way to decide the matter. It was decided to leave the matter to Mr. llesketh, who begged to be excused. Left sittingj ._