SUPREME COURT, LAWRENCE.

Tuapeka Times, Volume VI, Issue 266, 6 March 1873, Page 6

SUPREME COURT, LAWRENCE.

(Before His Honor Mr. Justice Chapman and a special jury. Wednesday, Febeuauy 28: Clayton and Others v. Morrison and Others. ' Mr. Macassey and Mr. Mouat for plaintiffs ; Mr. Barton and Mr. Chapman for defendants. His Honor took his seat at 10 a.m. Examination of Morrison continued : Before the blast of 1808, water was coming from the plaintiffs' ground. I observed the water on defendants' ground, and in' the two men's ground, a little above the foot bridge. The plaintiffs had fired blasts before' 1868. I believe the cracks I have mentioned were caused by one of the previous blasts. After the blast of 1868, as we brought up our tailrace to Speirs' boundary, we came upon new cracks. These continued till 1 left the claim in September 1869. Corir.ack succeeded me as manager. I attribute the cracks we observed in : *culting up oi.r tailrace, to plaintiffs' blast of 1868. Plaintiffs' dam broke away at the gnte, from some fault in the construction, before the blast of IS6S. It was repaired and used afto* fcbo blast. The dam wa B bolstered up. Cross-examined by Mr Macapscy — I don't remember making any complaint to plaintiffs' on account of the blast of 186 S. "*" I have complained to Thompson about the water. I took no proceedings. I could get no satisfaction from Thompson. It was evident that the water which appeared at the cracks at the. bottom of the face came from a distance. I have no donbt that the water came from plaintiff's race. After leaving the Spur in 1569, I returned in IS7O. I gave evidence in the District Court, in the csse of Mullin v. M'Nab, in April 1870. It is reasonable to suppose that the circumstances were then fresher in my memory. I do not recollect saying in cross-exam-ination, that I did not think that the slip in the Perseverance claim was attributable to \va_ter. The distance between plaintiffs' hjast and our own workings, is about 3 chains. My own company fired ofT blasts in that year but I cannot tell how many. There is generally a blast fired every four or five months. We had a blast on the lower face in IS6S, prior to that of the plaintiffs. Tney were ainali blasts — about 40 kegs of powder in each. The quantity of powder used in our blast o.f March 27, 1868, was not 23 cwt. It \yas probably about 15 cwt., but there might have been more. (Marked on map position where defendants' blast of IBBS was fired, and the position of the plaintiffs' blast of 1868). Mr. Nicoll was entirely wrong in his placing of plaintiffs' blast after the defendants' blast of 1868. A quantity of plaintiff's ground fell into defendants' claim, which resulted in the arrangement spoken of. I think defendants* blast was previous to plaintiffs'. Plaintiffs' dam was on their claim when the blast was fired. Barclay aud Fulton left the ground on account of its dangerous condition. Fulton occupied the house now occupied by Cormack. I will not swear that Fulton lived in that same house in January 1863. some months before the blast. Kep pel's claim was not on the move before the blast, but I will not be positive on that point. lam not certain of the quantity of powder used by defendants in 1871. Plaintiffs' blast of 1808 was not the heaviest fired on the Spur. Assuming that 2-500 lbs were used, there have been half-a-dozen occasions when more powder has been used. On the 14th February. 1871, I gave evidence in %he case of Thompson v. Hales. I don't know whether I stated in that case, "I fired a blast of a ton and half last week. That blast has shaken ground all about, and made cracks 200 feet back from the point of the blast." If the District Judge took down that statement, I would not undertake to contradict it. In that case I was a lyitness called by plniutifFs. I don'fc recollect saying " Wben I put in the 80 cwt, I was and am now afraid, that I might be made answerable for damages, but in that place I am alongside parties who will settle it without lawsuit." If that statement is on the judge's notes. I presume it is correct. The facts were fresher on my mind in the time of that case. The latter part of the statement would apply to the Perseverance Company. I told the plaintiffs repeatedly that it was- better to settle and not to go to law. The Perseverance Co. admitted having taken down ground belonging to the Great Extended Co., and defendants. When I asked them to settle the matter, T referred to our claims upon plaintiffs, and plaintiffs' claims on us. When I said it was no u^e going to law, I did not refer exclusively to the plaintiffs' claim upon defendants. I bave made a claim upon plaintiffs in writing. Mr. Barton objected to witness being examined as to the propositions for settlement. Cross-examination, continued —1^ we worked un t,o our boundary, plaintiffs' sro-ind. hiin-jh i in-j i<»osr\ must inevitiy r^l iisfn our ci.iim. (M-trked • •„--; ' ioi)-; of plaintiff's' and defendants' blasts on plan ; also- the face where the -\vat' j r ccmplaim-d of came in, and positions oiMffenrlcUits previous blasts.) it is not more reasonable to suppose that the cracks are attributable to the csefesdants bla*t of 1883. than to. plaintiffk The former's blast did not take effect so far in. (Marked on plan the ground nonr ps g-JG,fwhieb must inevit- N \b{7 IV. 11 \~Av defendants' v/oi'kings).

I will uot undertake to swear that our blast of 1871 had not something to do with the slip on plaintiffs' ground, and the condition of their claim. If the water had been kept off the gronnd would not have come down from the effects of the blast. The blast had something to do with making a place for the stuff to drop down iuto. I admit that the blast had something to do with bringing down the ground. , Previous to 1871, plaintiffs' water ran j over the landslips. I left the Spur in 1869, came back for a few weeks in the end of 1870, or beginning of 1871, bufc I was not again £Tfc the Spur till the ground was all down. Personally I do not know whether the races that came down were put up by defendants, but I am aware that they were put up by defendants. Photograph A represents the races after they were shifted before the blast of IS7I. (Pointed out photograph where the races were belbie the blast of 1571.) The ground under the races came down afteAhe blast of 1871, and before the races were shifted back. The defendants had Foine years previously arranged with Mr." Mouat to shift the races back to the position they now occupy, and application was made to the warden for the alteration. Some of the raceholders were against this. Corsnack agreed with Mouat, and a deed was drawn up. The deed was for shiftuig back the races, and amalgamating both Mouat's and defendants claims. * The deed is in Cormack's possession. It was never executed, as the arrangements broke through in consequence of the raceholders refusing to allow their races to be shifted. I do not know how much stuff we can run off in a day. The value of our stuff is about 2s. per cubic yard. I have heard that value given iv Court. I take no part in the management, or keeping the books of the Company. I had .a quarrel with Clayton — many quarrels — some after the claims were taken up. Mr. Barton said when he proposed to cross-examine Clayton about tins claim said to be jumped, his learned friend objected, and his Honor ruled against him (Mr. Barton.) He thought it unfair that Mr. Macassey should now be permitted to cross-examine upon the point. Mr. Macassey asked his Honor to take a note that he proposed to cross-examine the witness regarding this alleged jumping, and that the other side objected. Mr. Barton withdrew his objection. He only wished to draw attention to the matter. Witness — There was a dispute among the partners, but not about jumping. Feuton took up a piece of ground behind the claim. I don't recollect peggiug out any ground on my own aceouut at the time of taking up the claims. Speirs' claim was purchased by Morrison & Co. I saw in 1865 a peg showing the position of the 24 feet given by Morrisou & Co. to Speirs. Tt was between pegs 12 and 85. Peg 85 was standing in its original position when we agreed to give Speirs the 21- feet. The document giving Speirs this 21 feet, wag signed by my partners nnd myself. I'havo not seen it since. I cannot say how long peg 85 remained in its position after the arrangement with Speirs. (Pointed out on map the quantity of ground worked when Adams came to the Spur, in 1563.) Oue layer of cement had been taken off. It was partly because Speirs' race was there, and my knowledge of the ground that I insisted that Adams had placed peg 85 in its wrong positiou. Clyaton originally asked for au exchange, • and not merely room to construct a tailrace. He was very anxious about it, as he said he was losing money. The corner was worked after the exchange was made. There was only one layer taken off the exchange. If M'Clintock said that only the tailrace was taken throush the exchange, a. cutting talcen parallel to it, and tre remainder left unwovked, lie must have been wrong. We have been working up to the grouud we got from the Perseverance Co., ever since we purchased Speirs' ground. Part of it fell into our ground before September, 1869. The ground then was in a loose state, and was brought down intentionally, for the purpose of beii>g worked. It rolled down to us. We were firing blasts, but a long. way from the spot. (Mrrked position of blast fired iv 1869, which/ brought down stuff from defendants' exchanged ground.) I would not be inclined to say that any of the ground acquired 'by the exchange" by us from the Perseverance, has been brought down and worked,~"but I think we did work some. Part of, the ground marked landslip was brought down by our operations, and washed in partnership with plaintiffs. I claimed in one interview with Margetts our boundary as a line between peg 13 and the footbridge. That line differs somewhat from the boundary now set up. ' Supposing that Adams' peg 85 -is correct, the mouth of the tunnel from which defendants firad the blast of 1871 would be brought close to plaintiffs' claim ; and the n hutment Trersie said he recommended Nicoll to blast would be on plaintiffs' claim. There were pegs, all ulon.jfthe boundary between Speirs and the Perseverance Co. when Adams first cam.c to survey the Blue Spur. I cannot say whether pegs 12, 13, 1 1, or 15 were or were not standing at the time of Adams' visit. The peg in M'Clintock's garden waa not the boundary, between Mouat and Co, and Mor-

rison and Co. There was some spare ground between the two claims. Peg 6 was not in M'Clintock's garden. That peg belonged to Mouat and Co. My claim did not adjoin Mouat's at that point. I had a sharo in Mouat's claim. Mouat's claim touched Morrison's from pegs 10 to 12. I don't think Mouat's claim catne down so far as the line between 10 and 6. I have the lease of Mouat's ; but 1 can't say whether the line between peg 6 and 10 is the division line between Mouat and Co.'s and Morrison and Co.'s claim. I have not read the lease. That peg was never the boundary line between Mouat's and Morrison and Co.s' claim. I don't know whether A dams acted uponhis own judgment or from information supplied in putting in 86. Adams would never listen to any suggestion from me about pegs. There was a " barney "on the occasion ; but peg 85 had been put in before it commenced. The peg was put in by the direction of Thompson and Evans, who insisted that it should be placed in the position Adams put it in. Ido not know whether Adams was surveying other claims besides plaintiff's., I presume the plaintiffs paid money into the Warden's office for the .survey. I think on that occasion he came up solely to survey the "Perseverance claim. Peg 85 was the only one I objected to. Ido not know whether Adams on that occasion put in other pegs in the Perseverance claim or Speirs' claim. Our party did not complained about Adams changing the position of peg 85. We did not care about it. It was removed accidentally a few day's afterwards. Ido not know whether Adams replaced peg 85 on subsequent visit, After this changing the position of peg 85, defendants employed Adams, as also did the Great Extended Co., in which I am a shareholder. One of his surveys had the effect of giving a piece of Stove's] ground to the Great Extended. .1 was a shareholder in Stove's claim. The Great Extended Co. kept the ground. Ido not know whether there is a plan of this ground. Adams has not completed the survey of the Blue Spur. I have seeu the plan prepared by Adams in a casual way. I have never gone to the survey office to ascertain the difference between Adams' and Drummond's plans. I never compared the two plans. I heard that Hales complained to the warden about Adams' pegs. Morrison & Co. hold the lease of Speirs' claim. We have paid' i*ent upon it. The claim was never re-sur-yeyed, We nevzr looked at Speirs' lease and our own'loaao to soe if there was any difference. Mr. Barton objected to the witness being questioned about tbo leases. He stated that there was no intelligible difference between the two documents in question. Examination coulinued— l produce a book containing original memoranda from 2nd August, 1889, and notes copied from another book going back to 1865. The first entry is a note of a blast. I don't remember seeing Clayton in April. I don't remember any conversation with Clayton, in which I used the woi'ds, " what's this, Harry, Nicoll has been telling me." Clayton never threatened me with an injunction. I have a memorandum referring to an interview of June, 1572. . I have a note dated Ist July, 1572, as follows ■* — " William Evans asked Nicoll and myself to see Adams, the surveyor, as thoy were to have their claims surveyed. Nicoll and myself went on the ground, and fouud Adams surveying on our claim. ■ The survey was quite wrong according to the originfil survey by Drummond, in regard to the boundary between Spoii'3' old claim and the Perseverance Company, encroaching both on Speirs' and Morrison's eight or ten yards." The noteof 21st June, is " Pointed out boundary of claims between William Evans and us, to Evans and Murgelts. A rablier stormy discussion." The Court adjourned and on resuming 2 o'clock. Cross-examination of Morrison continued : I am prepared to admit that I saw Evans and Margotts on a -number of occasions; though I 'have no notes of the conversations. I never admitted to Clayton that we undermined the Perseverance Company's ground. I said to Clayton that I negotiated with Mr. M'lntosh for the exchange, but I never admitted to him that there was an arrangement whereby we agreed not to fire any blasts next to the Perseverance ground, till we got into Speirs' claim. The tunnels in working round to Speirs' were kept on to the right hand side, but there was no agreement to that effect. The reason for this was that the ground was very poor. We lost £2000 in cutting that tailrace. I was present at an interview when Nieoll offered to give, Clayton a piece of the Great Extended claim for a piece of the Perseverauce ground. Clayton said he would submit the proposition to his mates. I was not present when Clayton refused' the offer. The ground proposed to ba given to Clayton included part of the roadway. The road exists only on paper. Part of the roadway has been brought down by Morrison and Co. I did not tell Margetts that defendants were running off the Perseverance Co.'b loose stuff, and would pay for it. Margef fes asked if we had a reserve fund. * I said we had some money in the bank, but did not consider it a reserve fund. I have said to Margetts if wo brought down.

any of the Perseverance Co.'s stuff, we would pay for it if they would pay for the stuff that had fallen into their claim from Speirs' and the Great Extended claims. They asked me to put a price on the ground they washed away. I suggestod the price should be left to arbitration. I believe I did say to Margetts that there was no fear of the money, as we did not intend to leave tlie colony. I don't recollect saying that in a few months I intended to sell out of Morrison and Co.'s but would retain my interest in the Great Extended. I contradict the report of the conversation said to have taken p_lace on the 17th September at Evans' nouse, of which Evans made a memorandum. Although I have no notes of what passed, I remember being in conversation with Jenkin Evans. I recollect disagreeing with Nicoll about the true position of pegs 98 and 99, when Adams, Evana, and Margetts were present. Ec-examined — I would not set my judgmentagainstNicoll's as to the positions of pegs 99 and 98, seeing that he was present when they were put in and I was not. Plaintiffs never disputed taking ground from Speirs. The road on the top of the Spur is impassable. Some of the road has been included in leases. Speirs' original lease did not extend over the road. The renewal of the lease took in part of the road. That road was declared by Warden Croker abandoned, and another substituted. I consider if I removed the flax stick Adams put in at his peg 85, it would be an acfc of rudeness. Adams put an iron peg in the centre of Morrison's claim. He had no right to put it there, but it has not been removed. Adams never told me that he was going to shift or alter pegs. Till the commencement of this action, I never was asked to see a claim surveyed. Stuff from the piece of ground we gave to plaintiffs in exchange and stuff from behind was included in the partnership washing of 1868. Morrisou and Co. bought Mouat and Co.'s claim before the blast of 1871. The water companies never gave their consent to the shifting of the races till they fell in 1871. If the water companies had, in 1868, agreed to the alteration the races would have been moved back then. The agreement for the partnership washing was supposed to compensate each side for damage caused by the blasts. In my evidence in the case of Mullin v. M"Nab, I referred to water on undisturbed ground, not on broken ground. Gnoun.l is not visibly changed immediately after a blast, nor until water is put on to it. If ground were slipping, water would help its progress downwards. I did not mean to say in the District Court that water would have no effect upon ground. Bobert Grieve, storekeeper, residing at the Blue Spur — I purchased into the Perseverance Co. in • September, 1865. I sold out in August, 18G7. I am not connected with either plaintiffs or defendants now. I was manager of the Perseverance 00. I bought my share from Lawrence Henderson. The ground was -.pointed out to me when I bought in. I sold out to William Evans, one of the present plaintiffs. When I sold out I pointed out the ground to Evans. I showed Evans all the pegs and the boundaries I acknowledged. Starting from the ' dam, I showed him a peg ; thence down where the claim adjoined the Great Extended over to Keppel's lease ; thence to ground held under miners' rights as an extended claim ; and then across the tailrace to a cutting, which formed the northern boundary. There ought to have been a peg at the top of the cutting, but it was not there. There was cavity wherfthe peg should have been. When I bought in I asked my mates why the cutting was made. Mr. Macassey objected for the same reason he had objected to similar testimony the previous day. "Witness in answer to his Honor — T do not recollect who replied, or the date of my inquiry. His Honor allowed the evidence to be taken, but noted the objection: Examination continued — I was told the cutting was made for a boundary, line between Morrison and Co. and the Perseverance Co. When I sold out to Evans, I pointed out the same boundaries as 7 had been shown when I bought in. When I went into the claim, half the shareholders in the company were working in the cutting. I was against working in this cutting, but being a stranger I kept on working till I got better acquainted, when I induced them to knock off. They worked four months after I joined. I was manager from the day I bought in. I had two reasons for discontinuing work — one that the ground did not pay, and toe other that it endangered the dam. Several slips occurred. The cutting was 15 to 20 feet in depth, some places less. It went up in- a slant towards the dam. Drill blasts were fired iv the cut. The cement worked >cry well, but the blasts loosened a seam. The general dip of the strata caused the stuff to come down. The dam was in the centre of the upper boundary. The Perseverance workings must have helped to loosen the dam, though when I left it seemed solid enough. While I was manager of the Perseverance Co., large blasts came into vogue. I judged the prr\bable effect of large"blasts on the Perseverance and Morrison and Co.'s ground. 1 remember selling a piece of ground to defendants, situated at the lower part of the lease, to-

wards the extended claim. It was i thought that they only could work i it. I wished a face opened on that ( ground. The ground waa very poor, 1 and Morrison wanting it for a i tailrace would save us the expense i of opening it, - Morrison and j Co., up to the time I left the claim, j were fulfilling their- agreement. The [ same tailrace is used by Morrison & ) Co. at the present time. I carred up a tailrace alongside them. Morrison and I came to a verbal agreement. He was too make as much room as would allow me to construct a tailrace. I did construct a tailrace there, four feet from Morrison's. I wished to get into the ground at the back, which 1 considered payable, Mr. Macassey wished his Honor to understand that he objected to this examination. Examination continued — I did not peg out the ground systematically, while I was in plaintiffs' claim, but I looked after the boundaries. I did not renew any of of the pegs, because I knew their positions so well. I remember Evans and Margetts calling on mo, and proceeding to the claim with them. I did not give them any definite information, as I had not been being on the ground for four or five years previously, I remember on one or two occasions meeting Kendall, and conversing about the^ two claims. I remember seeiug a peg with a board on it. The place 85 resembles the locality where I saw the peg. I consider the position of peg S5 a long way to the north of the Perseverance Co's boundary. Cross-examined by Mr. Macassoy — Peg 85 might be 50 or 100 feet to the north of the Perseverance Co.'s ground. (Drew sketch of cutting). When I showed William Evans round the claim, I am certain Thompson did not accompany me, and lam almost certain that Jenkin Evans did not. lam inclined to think that it is probable that on arriving at a boundary, I took a pebble, and threw it as near as I could to the position of a peg I wished to show. I told Margetts that he could always find the boundaries by taking a line up the cutting, and then by the side of Barclay's house. Ido not know where the pebble dropped. I would not say if Margetta swore that the pebble fell into Speirs' tailrace, whether he speaks correctly or not. I often heard of an exchange between Morrison & Co. and the Perseverance, while I was a metnberof thel.itrercouipauy. I neverdenicd that an exchange had taken place. I don'fc recollect that I ever gave llargetts and Evans the statement which was taken down in writing: (Statement read by counsel). I never told Margetts that an exchange had never taken place. I never denied to Curregh or M'Laren any knowledge of the exchange. I could not do so. T bought Nicoll out of a storekeeping business. Re-examined by Mr. Barton — The peg I have been inferring to, is the one at the head of the cutting. I know nothing about the original peg 85. If I threw (i pebble to show a boundary, it would be thrown into the cavity I have spoken of previously. I would not throw the pebble 100 feet away. By the Foreman — I could - not hazard a guess as to the distance between the corner peg in the cutting and Speirs 1 tailrace. It might be 50 or 100 feet. There was a heap of stones between the cutting and Speirs' fcailrace, Peter Speirs, miner, residing at the Blue Spur — I arrived at the Blue Spur nearly 10 years ago. I remember taking up the ground^ afterwards known as. Speirs 1 lease. I was induced to take it up on the representations of Clayton and Donald M'Kenzie. Docherty afterwards becatna a mate of' mine. When I pegged first, I put id the pegs on the slip, but was afterwards induced to shift them, further up the hill. The original peg 85 was in when I pegged out my claim. I put in a peg near to where the dam was afterwards constructed. My first pegs did not extend to the dam. I first took up the claim under a miners' right, then I procured an extended claim, and finally a lease. My peg was ultimately placed 10 feet from the dam. 1 put that peg in. If Clayton said he put that peg in he makes a mistake. Afterwards there was a second peg alongside it. The Perseverance Co. applied for their lease before I applied for a lease of my claim. The second peg was a line peg of the Perseverance Co. There was no peg there when my peg was put in by Drummond. That, peg remained in position up- to 1866; I saw it afterwai'ds. I do not know when it shifted. I objected to Morrison taking up. the claim now known as Morrison and Co.'s. Morrison also objected to my application. To compromise matters, Morrison gave me 24 feet, running up to nothing at the back of the claim, with a right to take a tailrace through his claim. The 24 feet was measured on a continuation of the Perseverance line. I carried in the tailrace at the lower side of the 24 feet. - I never carried my tailrace through the corner of the Perseverauce claim. If I doubled back my tailrace from peg 85- to the Perseverance, it would have had to go up hill. Before selKng out to Morrison, I purchased- a piece- of ground from the Perseverance Co. I paid £12 for it. I think the land had a frontage of 50 feet on the Perseverance line, and 30 feet on ray liae. I worked all tb&

ground on the surface. The face in my workings was in its highest part 60 feet in height. The ground would be worked to a depth of 30 feet at peg 85. There was a heap of stones slacked by my party on- the piece of ground I got from Clayton and Morrison, and on the ground exchanged. There was no heap of stones at peg 85. Peg 85 was on our workings, and we worked it down. (Pointed out on photograph the .heap of stones.) The true position of peg 85 is to the left of the two men on the tailrace, and 50 feet back from the face. I [ have heard all the plaintiffs talk about the exchange. I .understood that an exchange of ground took place between the Perseverance Co. and Morrison and and Co. M'Clintock said the exchange had been made, M'Eenzie said so, and Alexander M'lntosh also said so. I think other shareholders also spoke to me, acknowledging the exchange. I saw Adams for the first time in 1868. I never saw him surrounded by a mob of men. I have been working on the ground constantly since 1864, with the exception of three or four months in 1868. I never saw Adams till Morrison brought me to him in 1868. Adams could have been on either Morrison's, Speirs', or the Perseverance claim without my knowing. When I arrived at Jwhere Adams was, Evans and Thompson were there. Adams had stuck in a stick with a flag upon it, to denote the position of the corner peg of the Perseverance Co.'s claim. I told him that he was wrong. Adams said " How's that T I replied " Why my tailrace is 24 feet in Morrison's ground. It is too far up the hill besides." Thompson, Evans, and the surveyor were talking. Thompson said "If things are going to be like this, we'll soon have no claim at all." I said " I don't care what you have got or haven't got. You've got; no ground inside the peg at the end of the cut." I saw M'Clintock and M'lntosh working in the cutting, and I think M'Laren. I have seen Grieve in the claim. I have seen M'Kenzie knocking about the claim. The Court adjourned till the following morning at 10 o'clock. Thursday, February 27. The Court resumed at 10 o'clock. Examination of Peter Speirs continued — I remember when Grieve was manager of the Perseverance claim I remember Grieve putting in a manuka peg at the head of the cutting. I know the location of peg 16. The ground between that peg and the cut was movable. It was movable ever since I marked out my claim. Plaintiffs worked some of that ground lower down on the faco of their own ground. They must have had water to work it. They had water running in the cutting while they were working there. They brought the water from the dam round the side of the hill, brandling it off in another race to the cutting. The cutting formed a tailrace. I remember, in company with Docherty, making a measurement for the purpose of ascertaining the width of our face, in order to see how to put in a shot. My tailrace was 80 feet from the cutting, on a line with the boundary of Speirs' and the Perseverance claim. Ground has slipped from peg 16 — some into the Perseverance, some into Speirs'. I cannot tell where the original peg was, and I am going now by the location it was placed in by Adams. I saw Mr. Adams near peg 85 shortly before the commencement of this action, and conversed with him. He was surveying about peg 85. I asked if he meant the peg he put in to mark the corner of the Perseverance claim. He said " Yes." I made the remark that if he added 24 feet he would throw my tailrace down on Morrison's — meaning that it was puttiug my tailrace too close to Morrison's. Adams said he had placed the peg within a foot or so of the one he placed. in ISGS. I think the peg is placed further into Morrison's claim than it was in 186 S. I remember being present at a conversation in Docherty's Hotel in Sept. last. Margetts, Evans, Nicoll, and Docberty were present. Evans said to Nicoll " Now as we're all here, we had bettor hear what Docherty has got to say on this matter." Docherty replied, " I don't know why you should come to me ; why don't you ask Peter and Clayton." Margetts then enquired what I knew about it. I said I knew a, little, and answered what questions he asked. After I had answered his questions, Margetts said, " Oh, that's the same old story that Morrison tells." I asked Docherty what distance our tailrace was from the head of the cutting. Docherty said 80 feet. I then said that was the exact distance, I had told Morrison on his making the inquiry. From the piece of ground I bought from the Perseverance to the cutting was abiut sor & feet. I worked beyond the fifty feet towards the dam inßide my own line. The ground we were working was very poor. Our last wr sMng-up did not give us £1 per week. Two . men wero employed for five months, and 3 men for one month. After the expenses were paid, we did not get more tban a pound per week per man. I got £200 for two years work. The blast I fired last was comj oed of 75Q lbs. of powder. We bad a shot before that of a ton of powder. I was working in Morrison's claim up to the time the injunction stopped the work. I am acquainted with- the boundaries of Morrison and Qo.'s and the* Pe?se-

verance Co.'s ground. Ido not think the plaintiffs have sustained any injury. I measured the distance between Adams' peg 85, and the head of the cutting. I found it to be 104 feet. r made that measurement since the injunction was served. Cross-examined by Mr. Macassey — ■ From the time I sold out up to the time of the injunction, I worked in Morrison and Co.'s claim. Since the injunction, I have been working in the Great Exteiided claim. I remember Fulton's house being shifted ; but Ido not remember the date. I remember plaintiffs' dam breaking away \ but I think that event occurred after Clayton sold out of Morrison and Co.'s claim. I cannot say whether the dam came down or Fulton's house was shifted before plaintiffs' blast of 1868, I have no remembrance of that blast. I took no notice of blasts. The ground was breaking before Fulton left. No stones were wheeled on to peg 85, because it was too near our ditch. I wanted to keep the ground near the face clear. The distance was 24 feet. The 80 feet distance between my tailrace and the head of the cutting is on the- boundary of the Perseverance Co. Of this 80 feet, 24 feet would be between true peg 85 and the tailrace. I worked 50 feet of the ground I got from the Perseverance. That, with the 24 feet make 74 feet. There would be a distance of 6 feet between the end of the workings and the 80 feet. I remember fighting Thompson ; but not on account of the place of peg 85. When Adams put in peg 85, I said ifc was not in its true position. I did not quarrel wiih Thompson about the true position of peg 85. All the pegs , marking my claim, with the exception of 85, were standing when I left. I •cannot say how many were in their places when Adams made the survey. There was a peg at the corner of the cutting then. I paid M'lntosh for the land I got from the Perseverance. At the time of the agreement, I had worked some of it unintentionally, as it slipped into my claim. All of the surface had not come away before the arrangement was made. I washed away the remainder of the purchased ground. The ground I purchased from the Perseverance was not the best I worked. There was no arrangement made about the boundaries or size. Clayton came and -pointed out the ground. Docberty was a mate of mine. Docherty has stated that ground got from the Perseverance was only 15 feet, and that I had said so. I never said so. Docherty remained a mate of mine 18 months. I don't think an) of the ground got from the Perseverance Co. was worked while Docherty was my mate. I saw water running down the cutting. Ido not refer to the partnership washing between Morrison and Co. and plaintiffs as the time 1 saw wator coming down the cutting. J don'fc think water came down the cutting during that partnership washing. \ was then working in the upper face. Re examined — There was no measurement made of the ground I got from the Perseverance. Clayton stood on the bank, and said I was to cut through in a line with a flax bush on the hill. If we put stones on the place where peg 85 was, they would have been covered up. It would have interfered with bringing down the stuff. I never measured the 80 feet I spoke of> bat estimated it from what I knew of the ground. There is no trace on the ground of the the cutting or my work. I did not agree with Thompson as to the true position of peg 85. I quarrelled with him. I left the parties on the ground to settle the matter. I never told Docherty that I got only 15 feet from the Perseverance Company. The only time lever could have mentioned 15- feet, was in connexion with measuring the area contained in the triangle, which I got from the Perseverance Co. Eobert Grieve, recalled — I produce - £h& book containing the amounts of gold procured by the Perseverance Co. M'Kenzie started the book. It starts on the 19th August, 1865. I started 30th September, and the entries continue to the 23rd December. The total amount of gold got out of the cutting during that time- was 13oz lOdwts lOgrs. The amount M'Kenzie has entered is 19dwts llgrs, as procured daring the three weeks he had charge of the book. There was a verbal agreement between Morrison and myself relative to the mode the boundary marked by. the cutting should be worked. Both of us saw that we would be throwing dirt into each others claims, consequently to avoid disputes, we agreed that each party was to take what fell in his owa tailrace,, wash it and retain the proceeds. We . were to continue bringing up our tailraces aide by side. (Explained on . map position of tailraces.) Morrison fulfilled his agreement so long as I remained in the- claim, and so did I till I left. Cross-examined — I had two shares in the Perseverance Co. I sold my shares for £350- each. I valued my shares at the time I was in the company as high as they are at present. I valued them at £1000 each. I kno\r of a sale of half a share in the Perseverance Go. for £800. Mining property on the Blue Spur has greatly increased in value, as the workings have become developed* The agreement I sDoke of in my examination was a verbal agreement. There was an agreement iv writing regarding the working of the two men's ground. (Copy of agreement rqadi and recognised by witness.)

8

The reason whj I made a written Agreement regarding the tailrace was that I wished only to give Morrison a title to the cement. It would be impossible to make a written agreement regarding bringing down stuff from the faces. A written agreement about that would have led to disputes. Charles D. Irvine, civil enginser, examined by Mr. Barton — I was articled pupil to Mr. Barton, engineer of most of the northern rail way and harbor works in Ireland, lam a graduate of the Dublin University, and obtained an engineering diploma in 1858 from that "University. I was assistant to Mr. Barton, and also to Mr. Swyer, Provincial Engineer of Qtago in 1862. Surveying is an. .elementary portion of a civil engineer's education. I have been employed to make surveys in connection with this action. I made surveys for the purpose of ascertaining the difference in the boundaries of plaintiffs' and defendants' claims, as laid down by Drummond and Adams. J have seen plaintiffs' lease, and the ■'more recent and accurate survey" by Adams. Adams has changed the bearings and altered the length of every line given in, the description. Qn finding peg 53, Adams ought to haye followed the description in the lease. If the lease lines did not fii, he had n.o right to do more that join the starting and terminating points. The acreage is always a guide. I have surveyed plaintiffs' claim according to the lease, starting from peg; 53. Startingfromthere^ there is a difference, of half a 'chain between the finishing and starting point. I have joined those points. (Produced plan sho wiug plaic - tiffs' claim, according to lease, and according to Adams' survey). Peg 16 comes about 5 feet from the point of intersection of the line according to Adams, and that according to lease opposite peg 53. The gap aceordiug to the lease is below the s.tartiug pQint. The gap made by Adams is at the north eastern boundary. The starting point given in. the lease, is at peg 53. I read Nicholson's evidence regarding conversation with Adams, regarding Drummond's survey. In a similar case I would have followed the description in the lease. I would have merely put in the length to enclose tha area, and acquainted the parties with what I had done. The lease of plaintiffs' does not enclose an impossible. Adams has changed the bearings 10 degrees. The only reason a surveyor could have for making sm h a great change, would be that it was unmistakably proved that the four corner pegs were Drummond's. My idea from the language used in the description ia that the true meridian is used. I have studied and had experience as a mining surveyor in Cornivall. The description in the lease is in the nomenclature of minjng surveys, and ought to be intelligble to a skilled surveyor. I \vould take it that the true meridian was used, unless slated to the contrary. I cannot conceive how Adams made such a serious change in the position of the claim. The magnetic meridian would make a variation to the east of 16.45. The magnetic meridian changes 2 deg. each year, till it reaches about 23 deg.. then it oxiliates back. If Adams had calculated the meridian of- the lease as magnetic, he would have shifted the position of the claim to the east. Adams has shifted the claim, to the west. Adams could not have taken the lease bearings for. magnetic IS he had made the bearings magnetic," it would have altered the position of the traverse and the starting, point. The plan showing the claim from the lease and also from his actual survey has in both instances used the true meridian. In. this plan also Adams has placed his recent survey to, the left instead of to the right. Drummond made his line 1062 links ; Adams 1124 links. I cannot conceive how the most careless surveyor makes such a mistake in a line of lO| chains, The Government do npt allow a mistake of more than 1, link in 1000, Adams' correction makes the mistake 1 in. 17. Another time Adams makes 791 links, Drummond 741 links. Adams makes the bottom line 704 4-10- links. Drurnmbnd makes it 4.32. A surveyorin surveying a steep hill might drop a chain or half a chain by accident if- he were careless j but it ia impossible for any surveyor to make a mistake of such a number of links. I checked the survey of the map containing the two diagrama I wentover Adams' traverse fromthestarting, and came within | line oir the peg. On Adams' copy of Drummjond'a survey the dotted pencil lines have been put in subsequently, to the ink lines, and over the figures There, are not " first construction lines." These pencil lines tend to throw the claim in a direction sinnlarto that on, the map con.structed by me. The piece of plaintiffs' claim which Adams' alteration throws into defendants 1 claim, is 2 roods, 4 perches. Morrison's lease is for Nacres, 22 perches. The distance between Adams' peg 85 to Drummond'a peg 85 is 135 feet. My plotting places it in the centre of Morrison's claim, "I measured, the distance.. The ground is broken,, and shifting a, good deal. It would be impossible for any one to retain an accurate, recollection of positions on Bo,eh ground, That, I presume, is the reason, for such different estimates of the distance between Adams' peg 85-. and Drumjuond'a peg §5, as have been given. The Court adjourned, and on resuming Examination of C, D. Irvine con-liBAWk-l vejified %c. survey ofc {ftp.

right hand figure on Adams' plan, snowing the two diagrams. The only assumption I took was, that the trig stations were correctly placed on the triangulation map of the district. Taking Adanjs' distances and bearings, I found that the right hand figure truly represents his plotting. His starting point on the left hand figure would be ■ about 13 chains to the N.W. of the starting point in the right hand figure. There would be a clear gap between the eastern boundary of the one and the western boundary of the other of nearly 6 1 chains. The traverse lines of the j left figure correspond with the description in the lease ; and the bearings and distances are correctly given.' On the lease the diagram, though inaccurate, would cause no difficulty. The bearings and lengths are given. I would always rely first on the description, then the figures, and last of all on tb,e lines, Adams in his figures has taken tb,e words and figures of the lease. Mr. Adams has not varied the bearings consistently. His first line varies 1Q deg. from Drummond's bearings. From 78 to 85, the line varies 13 deg. From 85 to 19 the difference in hearings between Adams' and Drummond's is 10.14 deg. Between 19 to 77 the difference is 6.5 deg. The ground originally stood on the summit of the hill. It is the practise to lay off the lines horizontally. Such surveys are made with half- chain lengtns ; and it is likely that in this instance one half chain has been dropped. The length of the missing line is exactly half a chain. I could not find the land named in Morrison's lease I of Speirs' ground from the plan on the lease. That land might be anywhere. There a,re no bearings and no starting point. Even if there was a starting poin<\ I could not find the land from the plan. The description, in the lease is us faulty as the pla.n,, There is no starting point or no bearings in the description. Towards. theN.W. would mea.n anywhere about a N.W\ line. From the lease alone it would be impossible to find the land. The laud is n,ot connected with a fixed point. The references to the other sections are indefinite. By His Honor — One of the side boundaries is stated, but there is neither beginning nor end to the line. Examination continued-^After reading a letter like that send by Drutnmond to the government in 18.66, I would not depend at all on the pegs to find out the land upon the lease. I would not depend upon the pe^s in any case. Gu the plan upon Speirs' lease of £7th January, 18GGL there is no tFaverse connecting it w,ith a tri^ station. In the description^ there is no traverse connecting it w.ith a survey, but there is a starting point given — the H{.E. point of Clayton's application.. The plan on Morrison & Co.'s lease haa a traverse connecting with trig station D. In the description, .there is a traverse given^ also, bearings and distances and a co,mtnen;Cmg point. Clayton's lease is equally explicit. It also has a traverse upon it. Both traverses are the same to a certain point. With the two leases, I could fix the position of both claims. There would be no overlapping of the claims, or any gap between the boundaries. (Ejead the description in lease.)" The difference between the line described, 418, and marked 468, is the half chain missing I have- previously spoken of. The blue outlined figure on the plan is drawn from the description of the lease, sup- • plying the half chain lost. That figure includes the exact acreage meutioned in the lease. Yellow figure represents the claim plotted from- the lease by Adams. Adams appears to have closed up the gap. The pink figure is Adams' " more recent and accurate " survey. There is a close resemblance, but a general disagreement between A dams'survey and the map compiled by him from the leases. Some of the lines are changed and some are npt. There is a general change of all the claims. Some have | been, extended^ others decreased^ in in size, and all the bearings are alteued. The map appears as if some one while \ making a tracing, allowed the. paper to slip. Mr. Adams, has not adhered to the descriptions ia the leases. Some of the bearings vary more than others. I made all the. plans produced by me. j They- ars correct according to data I procured Cross-examined by Mr. Macassey — I have been employed by defendants. ; I knew nothing of the survey of the Blue Spur, till I was so. employed. I •never visited the Blue Spur before I was employed by defendants. I arrived at the Blue Spur on the Thurs day previous to the sitting ef the court; since then I have beeen prosecutiug my inquiries.. The plans have been prepared carefully and deliberately. The plan iB scarcely a fair, sample of surveying ability, but. it serves its purpose. Surveying constantly comes ins;o the. practice, of a civil- engineer. 1 was a student for five years. I was engaged, more or less, all that time surveying. I could not say how long I was specially engaged in surveying. The first two terms of my college course were devoted •to studying surveying. I surveyed, when in Ireland, lines of railway. • In the old country surveying is made a specialty. Engineers do not always confine themselves exclusively to engineering, Surveying ! is included in the science of' engineer- ' ing. Many county surveyors are engineers. X. have, been in the colony since 1861, residing during that lime inQta^) and Southland: i npvt

1 reside in Otago,-and have done so for two years. I surveyed several mining claims in Stewart's Island in 1869. I never surveyed mining claims except those. During my residence at Port Chalmers I made a survey in connection with the water scheme. I have also surveyed for the citizens. I have not during the two years made any other surveys. I have been was in the employ of the Government. I left in 1863. I did not, after T left the Government service make any surveys. I was about a year as assistant engineer with Mr. Swyer. I surveyed for the railways in Southland, I was contractor's engineer. Davies and Connor were the contractors. I have written letters to newspapers, but was never connected with the press. For a number of years 1 have practically not followed the calling of a surveyor. I know of no board for ; passing surveyors. I know there are ' authorised surveyors — »Mr. Thompson's " pets." lam not a surveyor under the Land Transfer Act. I am not one of Mr. Thomson's C( pets." I am not aware that every surveyor of repute in the colony is an authorised - surveyor. lam not aware that a survey of Crown lands made by me would not be accepted, unless checked by an authorised surveyor. I was never employed to survey Crown lands. If I had a contract to survey a large block, I would probably take the trouble of being put on the list of authorised surveyors. I surveyed the traverse given in the plaintiffs' lease. I followed the description in the lease. I stopped at the first line. I obtained sufficient information to swear to the position of the land contained in the lease. What work I have done is sufficient to enable me to plot it approximately, irrespective of what Adams has done. Its position abeording to the lease, would be 13tj "chains to the northwest of the claim, and at the head of Munros Gully. I could, but did not, do that without reference to Adams' map. For convenience sake, I took the trig statious laid down by Adams. If plaintiff's lease is, in Munros Gully, defendants is undoubtedly there too. If ;i description were handed to me, and if I found that th.ere was a gap, I would fill up that gap. The acreage would act as a check. I think Drummond's error was caused by a half-chain being dropped. I remember in my experience a similar slip. It happened to myself. On the N.W\ boundary there is a difference of 50 links. If I found such a discrepancy, 1 would not be disposed to tlu'nk the previous surveyor incompetent. I would thii^k he had made a very great blunder. (The tracings were placed over th.c plan, so as to make points 10a, 10, 12, 16, 85, and 98 correspond.) Clayton's, Morrison's, and Speirs' claims closely correspond on both. The alteration by Adams, gives a little, of the Perseverance claim to Morrison. By making these thi'ee claims correspond, others would be thrown out. I followed two traverse Hues. I found it impossible. to follow the third. I do not say that that third line was incorrect. It was useless for- me to go over the other line., % have not been, in the -habit of surveying pieces of land. lam quite conversant with the language of leases. My objection to the description in Speirs* lease, is that it is not couaected by the traverse to. any fixed, poin.t, and not sufficient information is given to identify the boundaries. I would not recognize the map produced as it bears no signature. It connects the section 14 with tri^ station 3d. There is no. block marked. Assuming the map to be correct' and the surveyor competent, there would be no difficulty with its aid in finding the. piece of land described in. the lease. He-examined — With the tease alone I would not be ablie to. find: the land. The lease I have been referring to, is that of 1871 . If I found that a pre, vious map differed with the one constructed by Adams, and the lease was a renewal, I would give preference to the original map. The reason, I would give preference to the other map. is that it would be compiied from, pegs on the ground. Making points 16» 19-, and 77' on the map and tracing correspond, throws the Perseverance on to Morrison's claim. There is no more difficulty in surveying a mining claim than an ordinary piece of ground. I dropped a half chain once, but discovered it in cheeking. - Dropping the chain is often the fault of chainmen. It is possible to zigzag a number of lines and to put a resultant on paper w.hich it would be impossible to chain. I think Mr. Adams has put in a number of lines without chaining them. The evidence of John J. Hutcheson, taken under commission in Victoria, was put in and read. The Court adjourned tilj the following morning. Friday, February 28. His Honor took his seat at 10 a.m. Peter May, miner, resident at the Blue Spur, examined by Air, Chapman — I have lived at the Blue Spur about 9 years. I live at the back of Morrison's claim. I worked in Morrison's claim from. 1868 till just before the injunction was lodged. T previously worked in it -when Claytbn was manager. I' know the ''•landslip." I remember water- leaking through it from the Perseverance race a little before the slip, took place. The leakage took place before the accident to Rosa, I think thai accident occurred in 1868. A lump 6f cement tumbled down from the Perseverance, ground, qn. tQ Rpss^ breaking his

leg. This lump of cement came down through the leakage from the Perseverance Co.'s race. The leakage made it very dangerous for men to work in Morrison and Co.'s ground. 1 remember a blast being fired by the Perseverance Co. about the middle of winter, 1868. The blast was after the accident. The blast was put in the lower end of the Perseverance claim, below Morrison's side. This blast affected plaintiffs' race and dam. It shook the dam and shook the races. The blast shook the ground towards Morrisons' boundary I remember blasts being fired in Morrison's lower face. These shots had no effect upon the Perseverance ground. 1 remember water (joining through Morrison's ground. This water used to enter the cracks upon the slip, and come out at the bottom. The water came from the races, most of it from the Perseverance race, I remember a blast fired off by Morrison, in February 18.71- I did not know the boundary between Morrison's and the Perseverance, at that time, The hard seam upon which the soapy seam lies, would prevent the water from going further down. The water would consequently, run down this hard seam. I saw Jenkin Evans repairing the Perseverance race. He was caulking up the boxes with rags. These boxes were just above Speirs' claim. The water wlu'ch leaked disappeared in i the cracked ground, coming out as I previously stated in Morrison's claim. It was in the evening, after the water was off, when Jenkin E.vans was caulking the boxes. Ido not think that the Perseverance Company has sustained any injury from defendant's wordings. I know Adams, the surveyor, and have seen him at. pegs, I never pointed out the site of any peg. I saw him putting in peg 85. Jndging from my knowledge of the ground, T don't fchink he put it in the right place. I know where Speirs' tailrace was. The peg Mr, Adams put in was 15$ or 14 feet on Morrison's side of that tailrace. (Pointed position of Speirs' tailrace on photograph). I remember the cutting. After the blast, the ground was giving way, and ooming into and filling it up. I have no interest in defendants claim. I was paid off before the injunction. Cross-examined — Before the injunction J 1 was in the employ of defendants for three years. Since the injunction I worked a day or two in the Great Extended claim. I have since been tendering for tunnels. I constructed one tunnel for Hales and Co. and one for the Great Extended Co. The boxes I saw Jenkiu Evans caulking were those erected by defendants after the blast of 1871. I saw this being done after I was discharged from Morrison and Co.'s, and before the injunction. I was discharged from Morrison's claim a week or two before the injunction. Accidents are common at the Spar, particularly in Morrison's claim. I met with an accideut myself in Morrison and Co,*s claim. Mr. Barton put in an affidavit of H. C. Clayton and W. Evans, sworn in November 1872. James Barclay, miner, resident at the Blue Spur, examined by Mr. Barton — I | am one of the defendants. .1 have been a miner on the Blue Spur for eight years. I became -a shareholder in Morrison's claim in February, 1868. I have held miners' rights since then. I remember the Perseverance Co. firing a blast after I joined defendants' company. The blast was put in at the plaintiffs' lower boundary, on the side adjoining Morrison's claim. It was below the line of Morrison's boundary. The face into which the shot was fired was about 70 feet high, but the entrance was narrow. The tunnel was put in the middle of a sort of recess. (Sketched face.) The ground was the weakest towards Morrison and Co.'s. 70 feet was about the least height of the face. Behind the face the hill went up in a slop©. The surface of th& slop© was not sound. The cement under the surface had not been disturbed to my knowledge. The effects of the shot did not show for a duy or two. Then the ground began to crack and move to the eastward. The cracks gradually extended backwards to the dam. At that time I was living in a house situated a few feet north of the dam. The topographical sketch, constructed by Mr. Irvine, fairly represents the spurs before they were worked. (Marked position of dam and house on sketch). My house was partly on Speirs' ground, and partly on the Perseverance. Peg 16 was between my house and the dam. My house was about 10 feet to the N.E. of peg 16. The first crack I observed ran alongside the inside of the wall in the front of the dam. There were no cracks on the dam before the shot. I lived in the house from February till October, 1868. I lived in it several months before the shot. The Perseverance 00. could not put water in the dam after that. They had been using the dam up to that time. The dam gave- way very shortly after the shot. The cracks in the dam extended backwards, across the road. (Showed on topographical sketch the cracks.) Hived in my house up to October. The Perseverance Company cut their race round the front of my door. I saw the ground going. They brought the water between my house and the dam. It did not go down so far as the cutting. It was on the slipped ground at the lower end. The ground at that point became so unsafe, that I was afraid that some night, both house and myself would fall into the Perseverance claim, so I got it removed. When I shifted the house, the ground had not gone under any portion of it, but had gone close to it. The Perseverance race was first constructed in the solid ground, but the ground becoming unsound, » boxes were put in. (Marked race on planj; They- did not put boxes in that part of the unsafe ground which was likely to slip down to defendants. I was looking after the Tuapeka Company's water at the time. I have, observed' water coming into Morrison and Co.'s race, which could not be Morrison's. The Tuapeka race- came into Morrison's claim on. the N. W: boundary. The other water came in through cracks on Morrison's south eastern boundary, and flowed into thja tailrace.. When Morrison and Co. were using no- water at all, water came into their tailrace from, the Perseverance race through the cement, at a place near where boxes were afterwards put. There was no other headrace that the water could get into Morrison's tailxsfio. b»fc plaintiffs'. The Tjatex leaking

through had a tendency to bring the ground down upon defendants' claim. The race is removed from the place where I have described ; -but I could not say how long since. It is removed now. The blast of 1868 had the effect of Causing the Perseverance Co. to move bodily on to Keppel's ground. The ground I have previously referred to would not have come down nearly so quick had the water not come through it. In con- ! sequence of the blast of 1868, the i races were shifted back by the Perseverance Company into a cutting on ground purchased by them from the Great Extended Co. The ground on which my house stood, has gone down into the Perseverance claim. After the blast of 1868, the cracks extended back towards the road, to the N.W. of peg 16. The Perseverance Co.'s race cracked first. Keppel's race also went. The Perseverance Company shifted back the races an to the cutting on the Great Extended Co.'s ground,before defendants' blast of February, 1871. There has been no shot fired by plaintiffs' since their blast of 1868. The whole effects I have described are attributable to the blast of 1868. Where the dam was situated was the highest part of the Spur. The ground on which it stood has went down into the Perseverance claim, and been washed away. There is a depression at the dam site, where formerly there was a hill. The atrata dips t© wards the tf.E. The subsidence of the ground has weakened the grouud between the dam and Morrision's claim. If the Perseverance Co. had left their claim unworked, the ground would not have slipped in the direction of Morrison and Co.'s. I know the ""cutting I saw it before the blast of 1888. It has now disappeared- I know the footbridge over the tailraoe. I know where Adams' peg 85 is. It is a long way to the north of the cutting. With the lan.dra.arks on the hill, T marked the position of Speirs' tailrace and the cutting. I measured from, the iron peg to Speirs' tailrace. The distance I made was 147 feet, I measured from Speirs' tail race to the head of the cutting, making tl\e distance 81 feet 6 inches I measured the distances w.ith a tape line. I consider I have a very intimate knowledge of the ground. I have been on the ground since, and visited it every day. Between 18.88 and 1869, Mjprriajw and Co. were working up a tailraee to get into Speirs' ground. T did not observe any water in that tailrace above the place I have pi m evionsly stated. I remember defendcU>ts' blast of 1871. The western end of the cutting for a length of 40 feet, was then standing. Tn my opinion the weakest part of the ground was to the northern end, toward Morrison's upper face. The powder expended itself in that direction. That blast had no effect in my opinion on the ground between the Perseverance and Morrison's claim. The Perseverance 0o»'s workings are lower than ours. The dip of the reef would prevent defendants' blast from having any effect on plaintiffs' boundary. Towards the middle of Feb. 1871, I observed cracks behind peg 16. These cr.xks were a continuation of those caused by plaintiffs' blast of 1871, and went in the direction of the ground formerly held by Mouat. The conclusion I drew from that was, that the ground was getting weaker, and that the water getting in, forced the ground forward. The ground would follow the soapy seam. It is quite possible that had our blast of 1871 not been "fired, the slip would have occurred. Our blast precipitated the coming down of the ground. Plaintiffs have sustained no injury from the ground falling. No water has been turned by Morrison and Co. on to the slipped ground. After- four months cessation of work, our tailrace is now perfectly clear, with the exception of a little stuff knocked in by people. Our tail race is cut in the solid rock, two or three feet deep in some places. The quantity of water Morrison and Co. ran was from 400 to 450 inches. That is the quantity they were charged for. At one time Morrison and Co. used 400 inches ; but for a considerable time afterwards they were using 450 inches. 450 inches would not overflow the tailrace so as to wash away the face. It washed awny the face of our own ground before it came into the tailrace. To the best of my knowledge and belief, water waa never turned by defendants on to any ground owned by plaintiffs. The ground on which the pool caused by leakage from the races was would naturally slip into Morrison and Co.'s claim. The ground which would be pushed down before it would also be Morrison's. I don't see how it could have pushed any of plaintiffs' ground into defendants* claim. I don't know any thing about Adams or his pegs. 1 never pointed out any pegs to Adams, neither did I see a mob of men gathered round him pointing out original position of the peg;s. I never heard that Adams collected the claimholders round him for the purpose of ascertaining the position of the pegs. Cross-examined by Mr. Macassey — I joined the defendants in 1868: I don't recollect Adams coming up in 1868. I attribute to plaintiffs' blast of 1868 the leakage from the races and the bringing down of plaintiffs' ground ; but Ido not attribute wholly to. these causes the landslip of 1871. That landslip I attribute partly to plaintiffs' blast of 1868, partly to defendants'" blast of 1871, but chiefly to the. water' leaking from the races. I saw water leaking in 1868 ; But not in 1869, 1870, nor 1871 before the blast. I attribute to ru-nning water on the boundary the coining down of a lot of stuff. Water did not run on the boundary prior to the blast of 1868; I think the dam ceased to be used in June or -July, 3868. I recollect Fulton who b'ved near the dam. He left the hill some months before me. He might have left in March, 1868. Plaintiffs continued to use their dam down to the day they- fired their blast. II 11I 1 do not know the date of the blast. It would probably be on the 9th June. There were no cracks that I observed in the dam before plaintiffs'blast of 1868: The dam- had been repaired before the shot was fired. I recollect giving evidence in the case of Thompson v. Hales. I could not say /whether T stated" that I observed cracks in plaintiffs' dam-- before the blast. I think I stated that the dam- had been repaired. I swear the dam wwar» r used by plaintiffs after January, 1868. Tb.e« leakage from plaintiffs' claim into- defendants' tailrace • was after the blast. The plaintiffs* blasfc cracked the ground ; the- water got into the cracks, and came inja. defendants* taib»ee^ I don!t reopt

lect the defendants firing a blast in 1868, just before plaintiffs. 1 was looking after the Tuapeka race, thirty miles away, at that time. A blast, tired by Morrison, previous to plaintiffs' blast of 1868, could not have caused the cracks or slip, as Morrison's claim is higher up oft the reef. When I was answering Mr. Barton's questions, I did not think of the blast fired by Morrison and Co. in the early part of 1868. The ground through which I the water was coming is not solid and l standing now. There is a ridge standing between Morrison and Co.'s and the Persoverance Co.'s ground now. Part of the ground through which I saw water leaking in 1868 is standing now. Part of it ha 3 been worked. I was a shareholder in Morrison's company when the agreement to wash ground which had slipped from plaintiffs' claim was entered into. That ground was not brought down by defendants' blast. It was previous to that time that I saw the water leaking. I joined defendants' company on the 19 th Feb. 1868. Between 19th Feb. and 14th April, I observed the water leaking through. I was in the vicinity when defendants' blast of 1871 was fired. Ido not know the quantity of powder used. I saw Jenkin Evans every day. lam sure that Jenkin Evans did not speak to me about water " escaping from the Tuapeka race about a week before the races came down. If Jenkin Evans says so, he does not speak the truth. I did not have a conversation with Jenkin Evans on the 20th February,, as stated by Jenkin Evans in his evidence. Re-examined by Mr. Barton — Supposing the ground was cracked at the poiut shown by Jenkin Evans, and 30 inches of Vater were running out of the bottom, it is impassible, that any of the ground in dispute could be affected. Morrison and Co.'s claim is on a higher portion of the reef than Clayton's, consequently a blast from Olayton*s claim would have greater effect on the ground in question than a blast from defendants'. Noground > from whatever cause, belonging to plaintiffs' has fallen on defendants' ground. The Court adjourned, and on resuming at 2 o'clock, Ephriam Varcoe, miner, resident at the Blue Spur — I have been mining 11 years. I have worked on the Blue Spur since 18t66. I worked in Morrison's claim in 1860, up to 1863. Clayton was manager when 1 commenced t' 1 work in Morrison's claim. Clayton was manager when 1 left in 1808. I bought into a claim on the hill, and have had no connexion with Morrisonaiii.l Co* since. The alaiml bought into is no* near Morrison's^ I know the place called the cuttings The corner of the cutting nearest to Speirs" ground, was 212 fact from the iron peg a in Morrison's claim. Ido not know the boundary between Speirs' and the Perseverance claim. I know Clayton's old dam. The measurement would be on that line. I know Speirs tailrace. I know Adams' peg 85. That peg is 30 feet to the north of Speirs' tailrace. The iron peg is 22ft. north of 'Morrison's upper tailrace. I recollect plaintiffs ground in 1868. I recollect a slip in plaintiffs' ground in that year. 1 attribute that slip to plaintiffs' workings, and to their allowing water to flow over their loose dirt. I remember the Perseverance dam, also the Perseverance water race. At the end of 1868, Morris and party, in which I was a shareholder, fired a blast under the road. We were brought before the warden and fined £10. The warden told us if we got the road declared abandoned within a month the fine would be remitted. I went upon the ground repeatedly — 4 times a day. Soon afterwards the dam broke away, the races came down, and the ground cracked »;rosa the "road. The road was in consequence declared abandoned, and that saved us our £10. The cracks extended in every direction. I observed the cracks about July or August. I know the footbridge near Morrison's office. The tailrace over which that bridge passos is not the one 23 feet from the iron peg (Pointed out on map the position of tailrace alluded to.) I knew the tailrace because I saw Speirs and party working in it. I examined recently the ground which has slipped down in Speirs' claim from the shot of 1871. That "slip has caused no damage to the plaintiffs, assuming the exchange to be correct. I have.no interest in either plaintiffs' or defendants' claims. I have never pointed out any of Drammond's pegs to Adams. When I asked Adams to show the boundaries, he pointed a corner peg a long way from our claim in the next claim. My party amalgamated with the next claim rather than go to law. I have been among a crowd surrounding Adams, when he was looking for Drummond's. pegs. Cross-examined by Mr. Macassey — Morrison and Nicoll are partners.- of-" mine- in a reef claim. I mfide the- measurement I stated some three weeks ago. I never made, any measurements while employed in Morrison's claim. I made the measurements one evening. Morrison and Nicoll were with me. Morris and Co. brought down the road in July or Auguat. I cannot tell whether the Perseverance Co.'s blast was before or after Morris and Co.'s Morris's and* Co.'s blast was many hundred, yards from the Perseverance Co. Morris and Co.'s blast was fired before the 6th June. The Perseverance Co. were not brought up for bringing down the road 1 . We got the road abandoned within the month. I don't know when the. Perseverance blast was firedi L don't know whether the fact of the Perseverance Co.'s blast briugging down the road had any th.ng to. do with the remission of Morris, and- party's fine.. I heard of the* exchange from Morrison. He told me after I had taken my measurements* I was told that a line , from, the cutting to the footbridge- would be the boundary line. I was asked where the corner of the cutting was. I pointed .itout. w I was askedif any of the Perseverance Co.'s ground had come into, it, and I said not. Ido not know how. much of the exchange has come down v Morrison did not point out the area of the exchange ; and I do^ not know- its area. I know where the cutting was. I pitched upon the site of the cutting myself. Morrison and Nicoll were- with me. There was no landmark tq. indicate its position. When. -[ catne to, the -site of the cutting I. stopped; They asked me if. that was the* spot. Isaid"yes." They did not walk with me, but sat down near peg 85. I arranged ta-meet them previously. The only conversation I had*with;tliem < w.as one day I wa3 asked if I could poiut out the cutting, and I replied that I could, I have been once., to the ground, since. tke,tiin&Lha.VQ r

been speaking of. The last occasion I was on the ground previous to that time was some 6 weeks before Christmas. 1 have been on defendants' claim scores — perhaps hundreds, of times in 1872. I took no particular notice of the way defendants were working their claim. Re-examined — The defendants did not appear on my visits to be working in a negligent manner, and seemed to be respecting their neighbors' boundaries. I might go wrong a foot or two as to the position of the cutting, but I would not be far astray. I saw the whole of the N cutting while it existed. (Pointed out on map respective position of Morris and Co.'s claim and Clayton and Co.'s claim). There could be no doubt Morris and party broke down the portion of the road at their claim, and the Perseverance that portion behind the dam. Clayton and Evans are prospecting the reef in which I am interested with Nicoll and Morrison. John Cormack, miner, Blue Spur— l am one of the defendants. I came to tho Spur in 1863. With the exception of 6 months in 1863—1864, and 4 months in 1870—1871, T have resided there. lam a member of the Tuapeka Water Race ' Company. I was looking after the water of that company from 1864 to Aug. 1868. The exchange ground was pointed out to me by Mr Clayton. He showed me where they were working up a cutting towards a peg, saying that cutting was to be the boundary. That peg was towards the dam from Speirs' boundary. The cutting was ultimately made up to the peg. I asked Clayton where the original corner was. He pointed to a heap of stones, saying "Just where 'hese large stones are/" I know where Adams' peg 85 is. I have stepped from where Adam 3 last put peg 85 to the place where the true peg 85 ought to be. I make the distance 130 feet. Adams' peg 85 is 30 feet north of Speirs' tailrace. There was no peg in August, 1868, when I came to work in the claim. The stones were from 20 to 30 feet to the south of Speirs' tailrace. Defendants purchased Speirs' claim. Being possessed of the exchange was one of the reasons- that induced usto buy Speirs' claim. We could only have worked Speirs' claim at great disadvantage from Morrison's old claim. Previous to his selling out, Clayton was manager of Morrison and Co.'s claim. Plaintiffs fired off a large bUst before I came to live at the Spur. The after consequences made that an exceptional blast. (Drew a sketch of face, and described it to jury.) There' vera two fa cos in plaintiffs' claim, one looking to the north and the other to the west. The powder was put in when they joined. There is a 1 great diversity of opinion about putting in blasts on the reef or off the reef. A face like that of plaintiffs' does not give a blast a chance of blowing the face out*. In such a case powder is apt to search for crevices, and takes effect in the hill. Theblast took effect beyond the back boundary of plaintiffs" ground*, and affected the Great Extended ground. There were races on the ground affected. The water escaping from those races had the effect of sending the broken ground into plaintiffs' ground faster than plaintiffs could wash it away. The Was* had a. very great effect all around. The ground, if shaken up behind, would, in consequence of the dip of the strata, slide into Morrison and Co.'s. Part of plaintiffs' daim moved down upon KeppeFs claim, and plaintiffs bought Keppel and Co. out. The surface was in a broken condition when I first knew it ; and the condition of the stuff underneath could no* be ascertained. About a month after I came I saw water come into our claim. Thompson cut a race from where the Perseverance dam wa3, tD wards peg 85a, to wash down the stuff above he cutting in place marked "slip." There was some surface left by the men employed by Clayton's party in 1865. In 1868 they were sluicing away this top stuff. Their water was coming through cracks, and also over the surface. It left the stuff in a muddy state, and lumps of cement frequently came into our claim.. This was very dangerous, and defendants had sometimes to- send up a man to prevent the lumps of cement tumbling into their claim. All this was after I came to work in the claim in August, 1868. The water came out of the crack in a stream of 10 inches. It was evident that that water came from plaintiffs' race. When the plaintiffs discontinued, the water ceased to come into defendants* claim. The water Jenkin Evans saw in 1871 coming through cracks- is not the water I refer to. I could not say why the arrangemen* entered into by Grieve and themanager of" the defendants' claim was nofe carried out. Our- race was carried out according to. the agreement, but Clayton had discontinued bringing up his tailrace, according to the agreement, before that time. That, agreement was equitable, and would have given each company a fair share of the ground^ A similaraiTangement exists between the Great Extended Co. and Hales and Co. Onth» 10th August, 1868; I was altering theTuapeka Water Race back fron>. theground where the cracks were appearing. The race was then ctose' to. Speirs' boundary at the back of the dam* I- shifted" at 30 feet back towards Mubtos, Thecracks in the Tuapeka. race were running N. and S— parallel with the races. I attribute these cracks to the PerseveranceCo, 's workings, to water being turned on, and their taking the ground away. Thaground was previously shaken: up by plaintiffe' blo&t. J don't recollect the* date«of the-dam- breaking down. Ido not; know how often it broke down. I believe, bub would not like to say, that thedam was used after the blast. T live in the house occupied by Fulton. I bought it on the Ist July. I went to- liy& in? ifc. on tho 6th. Jnlyv It waa- in- its present position when I bo»srh£ it. The fencing and garden had not- been, removed from their original position* Assuming that the exchange- has taken place, the defsudanfcs' blast of 1871 has not caused anyof the plaintiffs' ground to fall into Morrison and. Co-. 's claim or tailrace and" noneof it been washed away. I dc-n-^t think plaintiffs ever washed ground- fro*!* the* sou-th, sivle of the cutting 1 . Ait present there is more ground on the south si 13 of the catting than there- was on 2nd Mai-cb, 1872. That ground 1 came from* Speirs^ and has. gone in upoa plaintiffs' claim; about 30 feet. I lef> the Spur on the 6th October, 1870, and returned on the 20thFebruary, 1871. When I came on ta the-

(For co-ntiiwottion of Supreme Court, se&. Sugphwmt