SUPREME COURT, LAWRENCE.

Tuapeka Times, Volume VI, Issue 268, 20 March 1873, Page 7

SUPREME COURT, LAWRENCE.

Tuesday, March 4. (Before His Honor Mr. Justice Chapman and a special jury. - Clayton and Others v. Morrison and Others. His Honor commenced his charge by congratulating the jury upon having arrived at the last stage of their labors, which had kept them from their homes for such a length of time. The evidence adduced on both sides, was very complicated, and he did not see how the case could have been materially shortened. Counsel had wisely curtailed the case by reserving the law points for discussion in lanco, leaving him then to direct the jury as to the law. A case like the present one, necessarily occupied a long time. The witnesses spoke of facts extending over a long period of time, necessitating very minute cross-examination to test the precise knowledge they possessed, and the value of 'their memories. His Honor then eulogised miners, more especially"" those engaged upon the Blue Spur, for tbo Courageous manner in which they had attacked nature, and- regretted that the parties to the case that had just been tried, had not made some arrangement by arnalgation or otherwise, so as to obviate the necessity of appealing to courts of law. He' would make an effort when the case came before him in banco, after hearing the arguments of counsel, to place the law in such a state, as to enable every party to know their rights, and he sincerely trusted that such being done would lead to amalgamation. There were three counts in the declaration. The second was not of much importance, and had merely been put in for the purpose of obtaining an-inj unction. It was not usual in the case of a simple trespass for the Court to grant an injunction ; but when the trespass continued the Court granted an injunction. The first count alleged that defendants did not leave sufficientlateral support to plaintiffs' claim, whereby it fell away ; and the third count charged defendants with converiiug to their own use goldbearing earth the property of plaintiffs. The pica denied all the allegations contained in the declaration, leaving the plaintiffs to prove that the alleged damages had occurred. The third plea alleged contributory negligence on the part of the plaintiffs. The question as to negligence would turn upon the two great blasts — plaintiffs' blast of IS6B and defendants' blast of 1871. The issues had been framed according to the pleadings. Mr. Barton, in his opening speech, had contended that the law laid down by him (his Honor) in the case of the Great Extended Co. v. Hales and Co. had no application in New Zealand, and seemed to doubt if it applied to mining in England. Mr. Barton laid down that that law applied only to freehold property left in a state of nature, and not to any other property, and certainly not to mining clai rs. The law of England was that two adjacent properties, whether tbeir tenure was freehold or leasehold, had a mutual right against each other to lateral support. In other words, no man had a right to dig so near his neighbor's boundary that his neighbors soil fell into the pit. That that twas the law was clear ; the only difficulty was in applying it. That law was part of the ancient, now the common law of England ; it applied to the colonies, and was the common law in some of the United States of Amnrica. In some of the States and in some of the colonies the legislature had altered the common law by statute. But where it had not been so altered, no judge had any right from some crotchet of his own to say, " This law is inconvenient, and I will not apply it here." The statute law of England applied to the colonies only so far as circumstances and conditions permitted, but the whole of the common law applied. The legislature only adoped such portions of the English statute law as applied to the colony ; but even without the intervention of the legislature, certain parts of English statute law were applicable where conditions and circumstances allowed. The learned judge cited the law of primogeniture — a law intended to perpetuate the feudal system, and did not apply to such a state of things as existed in the colony. If the court had the same power of determining what portions of the common law applied as they of the statute law, it would probably bold that that law was inapplicable. But no court would dare to say it did not apply, as it was part of "the common law of England, and was in force in the colonies until repealed by legislative enactment. In bis private capacity, he did not think that the law of "primogeniture at all applicable, but no judge nor court could interfere with it. Many parts of the common law through lapse of time, had become absurd, but no judge could alter them until the legislaturehaddealtwiththera." There were absurdities in connexion with conveyancing, but they had to be tolerated until an act was passed repealing those portions of it inapplicable to the colony. But the common law of England, under which I two adjacent proprietors had the right of mutual support against each other, was the law of this colony, and would remain so until repealed by legislative enactment. He agreed with Mr. Barton, that the law of support extended only to land, in its natural v state, and not when it had been dis-

turbed. If it could be shown that plaintiffs by their workings, bad disintegrated and broken up the ground to a considerable deplh, aggravating tre effect of their action by putting water over the ground, although they had the right the law allowed them to the support necessary to keep the land up in its original condition, they were not entitled to additional support against all contingencies. It had been held in England, that a man could not demand a right to support for land burdened in any way. If a man built a house so close to his boundary, that an ordinary disturbance on his neighbor's land brought it down, it was his own fault, and his neighbor was not accountable. If plaintiffs had through their own operations so broken up I their land that it must inevitably fall into defendants' land, then the latter were entitled to a verdict on the first count. The count for conversion was as much a separate cause of action as if it had been tried separately. If the jury arrived at the conclusion that the injury complained of arose from plaintiffs' blast of 1868, andjiot defendants' blast of 1871 — that is if they found that defendants had rendered the common law of support,' and Were entitled to a verdict on the first count, it was still open to them to find a verdict for plaintiffs on the third count. If even through plaintiffs' operations, cement had fallen into defendants' ! claim, they had no right to wash it away, or appropriate the rich contents. Assuming that the stuff from plaintiffs claim fell into defendants' claim through thecontour of the country, and not from the result of any operations, still the defendants had no right to appropriate it. The law in favor of defendants was that plaintiffs' land falling on their claim constituted a trespass. Under ordinary circumstance, when the land fell into their claim,defendants ought to have written to the plaintiffs, stating "Some of. your dirt has fallen into our claim ; if you don't take it away we will remove it at your expense." But in workings like the Blue Spur it would be impossible to remove the stuff back to plaintiffs' claim. The cement, though rich, would not pay for making roads and the other operations necessary to shift it back to where it had fallen from. But auother way could 'be adopted — the plan resorted to in 18G8, of washing the ground in partnership, and dividing the profits. No difficulty whatever in the way of returning the stuff to plaintiffs Justified defendants in washing it and retaining the proceeds. Whatever { conclusion the jury came to on the first count, and the issues thereunder, i they would still have to consider whether dirt bad fallen from plaintiffs' into defendants' claim ; ami whether, if dirt has so fallen, the'latter had washed it and retained the proceeds, and what | damages ought to be allowed in consequence. The purchase from Speirs, and the larger question of the exchange, would have to be considered in the assessment of damages, and he would ask them to divide the damages , if they found plaintiffs were entitled to j any, in three parts. They would first find how much has fallen from plaintiffs' claim behind the ; how much from Speirs purchase ; how much from the exchange; and estimate the damages accordingly. There was the difficulty that the lease did not define the boundaries in a proper manner. Prima facie the defendants were entitled to the land conceded to them under the provisions of the Groldfields Act, according to the Imrings and descriptions given in their lease. But it was very easy to describe in words a k piece of land which it would be difficult to fix the position of by actual survey on the ground. Such was the caso in the leases now before them ; and in order to ascertain the actual claims, they were compelled to resort to confused evidence about pegs given by the miners who resided in the vicinity, and the conflicting statements of rival surveyors. The chief difficulty was that the original landmarks had been altered. The land was pegged out under the Goldfields Act of 1861. Under the Goldfields Act of 186G leases were granted ; but it was not intended that the boundaries of the claims should be altered by these leases. The leases were intended to give a more certain and secure tenure, and lessen litigation. Bu,t this result had unfortunately not been arrived at — the reasou being explained in Drummond's letter of October, 1866. In 1868', before any of thegreatdisputes arose, Adams was sent up to re-survey and place the claims' in an ascertained postion. On arriving upon the ground, Adams said that all the landmarks had disappeared. If he could have fouud onc^pe^, h-id the bearings given accurately in the descri ption's, he would have experienced no difficulty in laying down exactly upon the land what plaintiffs, defendants, and all the other claimhoiders were entitled to. But the very words of the lease showed some sort of a break. Drummond's traverse was unreliable, and Adams had to construct a fresh one. The plan constructed by him, and now produced by him in Court, was an exact representation of the claims accurately laid down by him. A good deal of evidence had been given as to the disturbance by the workings of peg 85. Nearly all the pegs had been disturbed when' Adams went upon the ground. He could not rely upon any pegs; he was surrounded by-per-sons all interested in his survey ; but h# could not^ get any satisfactory

evidence aa to tho positions of the pegs. If he could have got two or three adjacent claimhoiders to concurrently agreo to the positions of certain pegs, he could have laid off those claims satisfactorily, even though his survey differed a few feet from Drummond's. Defendants', witnesses accused Adams of arbitrarily laying off peg 85 ; but he denies the charge, and says that he fixed it to the best of his ability with traverse lines. Irvine had been called in and pointed out a different position as where it ought to be. It was not for him to say as . to the professional ability of these rival surveyors. Both appeared competent, and had a ready reason for what they stated. It was for the jury to decide which evidence was most entitled to credit. He could point out to them in principle, but not in degree, the effect of the conflicting evidence. They had to determine the land each of the parties possessed. Irvine placed peg 85 133 feet to the north of where Adams placed it. The effect of this was to shove all the claims to the southward. No two of the other witnesses agreed to where the position of this peg 85 ought to^ be. Adams distinctly said his survey was correct, and that he placed peg 85 in its proper position. He swears that his survey is accurate, Bubject, of course, to all the normal discrepancies allowed by the survey department, except in trigonometrical surveys, which are absolutely correct. They may take it then that Adams' survey is substantially correct, supposing him to be competent. Taking Adams' survey, the blast of 1871 was near Speirs' tailrace, and clearly on plaintiffs' land. If they came to the conclusion that Speirs had purchased a piece of land from the Perseverance Co. and adopted Irvine's survey, the blast would be placed a considerable distance from plaintiffs' boundary in defendants' claim. The jury would have to decide for themselves regarding the alleged negligent mining. Whatever they determined the position of peg S5, they would Jiaye to consider the relative position of the blast in respect to the two claims. If Adams' survey were correct, plaintiffs' claim was comparatively near* the place where defendants' bhivst of 1871 was fired ; whereas if Irvine's survey accurately placed the position of the claims, plaintiffs' would be comparatively distant from it. They would thus seothat the question of boundary affected the ri^ht of natural support. He would not wade throngh the labyrinth of evidence about pegs ; but if the jury from it could determine the position of peg S3, he would be inclined to rejoice. The evidence was confused and contradictory, because during the 8 or 9 years over which it extended the pegs had been shifted by the workings. Men accustomed to gold mining loosed upon the pegs with a religious veneration, and would not wantonly remove them. Up to the survey of ISGS, however, tliere was no reliable evidence regarding the position of the pegs. The doubts as to the positions were increased by the adverse statements of adverse witnesses, and they had therefore nothing to fall back upon but the evidence of the surveyors — and rival surveyors. He could not discriminate between the two. Both appeared to be men of skill and well acquainted with their profession. Adams had been a long while in the Government service, and his performance of his duties had given satisfaction. He was resorted to in cases of dispute by the Blue Spur miners, and had generally proved successful in settling disputes. The question for tho jury was : Had they confidence in the reasons he gave for his statements ? Mr. Irvine commenced his career in Trinity College, Dublin, where he had studied surveying for two terms. The fact that he had constructed the plans shown, indicated that he had a knowledge of surveying. He had stated that surveying was a necessary acquirement preliminary to the study of engineering. Surveying was a more limited profession than engineering. The chanches were, that a- man who confined himself to a particular branch of a profession, was likely to attain a greater proficiency in that particular than a man who engaged in several branches of the profession. In this colony, lawyers were legal jacks of all trades — had to make themselves acquainted with every branch of the law. In England it was different. There men of the acutest understanding devoted themselves to the study of particular branches of the law, and necessarily acquired a much greater proficiency than the lawyers in this country, who roamed over a wider range. Still, he hoped, New Zealand lawyers did not do so badly. _ It was the same with surveying. If a man confined himself to surveying solely, he was more likely to be practically skilful than a man whose mind was divided over a more extended range. Mr.- Irvine's answers gave him (His Honor) the impression that he was competent to perform surveys. It was, however, for the jury to determine which they would believe of the two antagonistic surveyors, who had produced rival maps. The jury woul 1 have to decide whether the plaintiffs were in possession of the land shown according to Adams, or according to Irvine, so as'to leave peg 85 so many feet in defendants' claim— -bow many he could

say. It was a difficult question to settle, and one that ought not to be left to one man. It was far -better to leave its solution to twelve intelligent men, better acquainted with mining and the locality than he could possibly be. After being directed as to the law, they would be more likely to arrive at a correct verdict. Now as to the blastp. It would be necessary first to assume that no stuff came down. Plaintiffs' witnesses were positive that the ground described by Margotts as the round hill, was comparatively sound until defendants' blast of 1871. Clayton first observed indications of the ground having been affected two or three days after th at blast. Small cracks afterwards appeared, which widened and gradually extended. The evidence of all plaintiffs' witnesses was on the whole confirmatory of this. Margetts shortly afterwards saw cracks in what he previously considered stable ground, which extended and increased in magnitude until the whole of that portion of land became disintegrated. Kendal, in describing the operation of the blast, stated that there was an abutement that was thrown down. This showed that at one time defendants considered it necessary to have a leg or abutement. Such legs, to keep up the faces of the workings, were common on the Blue Spur. It would be a matter for determination whether tlrat leg was necessary to support the adjacent land, and whether it ought not' to have been kept up. It might be assumed that the leg had been previously considered necessary to support the face of the workings. The jury must always bear in mind, however, that Irvine's survey placed this leg comiierably further from plaintiffs' land than Adams' did. A month after the blast the great smash took place — the ground fell and came pouring down to the eastward into defendants' claim, and the cluster of races above defendants' ground also came down. This showed the potent effect of the blast. If the evidence stopped there, it would be sufficient to cause the jury to give a verdict for plaintiffs on the first count, as it showed that the natural support plaintiffs wore entitled to have for their land, if it were in its natural state, had been taken away by defendants. But the evidence did not stop there. The ground that came down, bad been shown to have been previously disturbed. It had been stated that it had been so disintegrated, so honey-combed by plaintiftV own blast of 18GS, that the effect of water was to bring it down. One witness said it was in such a state that it must inevitably have came down, had defendants' blast of 1871 never occurred. If it were the case that this ground was so broken up and disentegrated as to be wholly loose, and amenable to the effects of winters frosts, and the rains of spring and autumn, defendants were entitled to a verdict under the first count. Some of the witnesses had asserted with a positiveness — rather coo much so under the circumstances — that defendants' blast of 1871, was not the cause of the landslip — one witness had asserted that that blast had no effect whatever on it. If the ground were broken up, as described, by the blast of 1868 and the blast of 1871, had aggravated the effects of that blast, then plaintiffs were entitled to a verdict. All the witnesses who spoke of the blast of 18G8 spoke of it as a potent one, and_ quite equal in its effects to defendants' blast of 1871. There was the difference between the two, however, that defendants' blast was on the reef, and consequently its effects would be less in the direction of plai ltiftV claim than plaintiffs' blast, which was in the middle of the cement, and would operate in all directions. Defendant sfurther stated that plaintiffs' blast had more effect on the ground above than their blast had, in consequence of it being fired at a lower level. Other circumstances relied on by plaintiffs, were contradicted by defendants. One of these was the breaking away of the races, and their immediate repair by defendants; Plain tiffs averred that they repaired these races, because thsy knew that they bad been brought down by their blast. But defendants say it wag no such admission, and that no such inference of liability ought to be drawn by the jury. They state that if they allowed the raceholders to repair their races, they would have been replaced in the same position, and they would not have obtained the advautage they sought in shifting them. Moreover, they say plaintiffs lent them two men, and did the work of repairing their (the plaintiffs') race. Another matter was the evidence g'ven in the' District Court by Morris: n Morrison gave his evidence in a truthful, straightforward manner, and seemed in every way a witness for the truth. Plaintiffs said he expressed in the District Court his belief that he would hereafter be liable for the effects of his blast, but he knew the parties alongside would settle without a lawsuit. Not much importance can be attached to a statement of that sort. It meant *' I don't know law, perhaps lam liable ; but I know I can make an amicable settlement." It was, however, a circumstance the jury ought to take into consideration and weigh well. The fact that Morrison, at the time he gave his evidence in the District Court, thought that the blast of 1871 was likely to do injury, although it might not be of value of deciding the case, might be a

makeweight in favor of plaintiffs. A great deal had been said about the surveying part of the business, and how the position of plaintiffs' and defendants' claims was to be determined by that of peg 85. The jury, however, al-o lud to consider how the breaking away of the mound came about. In doing this they would have to take into consideration the blasts of 1868 as well as that . of 1871. They must ask this quegg' ition: Would the blast of 1868 ever been heard of except in consequence of the blast of 1871 ? They bad beard of conversations about the 1868 blast, bu* not of any action upon it. The whole surroundings of the dispute, all the conversations and actions are relative to the blast of 1871. But this was. natural, as plaintiffs would not take into consideration the blast of 1868. If they considered the blast of 1868 aggravated the cracks, increased the leakage, and the jury must remember that every drop of water had the effect of rendering the earch more firable and more insecure. — if they found that the blast had the effect of breaking up the ground, so as to cause it to 'pour down year by year, they must find for defendants. If, on the contrary, they found that blastdidnot disturb the surface, that its effects were but slight, and did not render it necessary to keep up more than common law buttresses, then they must attribute the effects desci'ibed to the blast of 187 L There was considerable evidence ou that point. One witness observed no additional motion on the ground in 1869 and 1870. Several witnesses declared it continually moving then, and one asserted that it was moving even before the blast of 1868. A point in favor of plaintiffs was that defendants were continually firing blasts, and let off a considerable one in 1870. This had a cumulative effect in favor of plaintiffs. The evidence against plaintiffs attributes the ground coming down almost wholly to the blast of "U6B. Then came the question of the value of the damages. If th? buttresses blasted away cauced plaintiffs' ground to slip into defendants' claim, thereby inflicting injury ou plaintiffs, the jury would have to award reasonable damages. Oae witness alleged, that his share was rendered £150 less valuable. There was a tendency upwards in the value of shares in Blue Spur ; but a man was not to he deprived of damages for any injury he might sustain because of that upward tendency. In estimating damages for the decrease in the value of the claim, the jury must not consider the value of the dirt. They must consider only the amount of injury sustained by plaintiffs, apart altogether from the value of the dirt they lost. The disintegration of tlie soil might be rather a, benefit than an injury if the plaintiffs were working the soil so disintegrated ; but if it caused permanent injury to plaintiffs' property, it was competent for the jury to award damages. They might consider in assessing such damages, Margetts' opinion as that of the company. In the question of the wrongful conversion of the dirt, it was necessary to take into consideration Speirs' purchase and the exchange. These matters were in a lamentable state of uncertainty. Clayton said there had been a transaction whereby plaintiffs gave defendants a right to take a tail race across their claim. The jury would recollect that the two transactions took place before the leases were granted. At the time they were made, the men understood each other, and the ground was worked away. Those who effected the transactions never thought that they would crop up in a court half-a-dozen years afterwards, when it would be necessary to give specific evidence of distances and boundaries. There was evidence that the -sale of a piece of land by the Perseverance Co. to Speirs, had taken place, and that the purchase money had been paid. Speirs said the land he purchased was fifty feet along the Perseverance Co.'s boundary, and thirty feet along Morrison's. This piece of land appears to have been nearly worked out — the surface to have been entirely worked out. The evidence regarding the exchange was very conflicting, and the jury must in fact guess at its boimdarics. There was little doubt that Morrison claimed a3 a boundary, a line from peg 13 to the footbridge, though he did not long insist upon it. That boundary seemed proposterous. As Margetts s.iith, no jury would believe that it marked the line of exchange, unless plaintiffs g6t some peculiar advantage suoh as a tailrace. At the interview which took place at Evans' house, Morrison drew a line on a plan to , show the exchange bound xry. That line still showed that the Perseverance Company had given Morrison and Co. more land than they had received. The law did not interfere with bargains made by grown up persons, and even though the area given by plaintiffd was larger than that given in return by defendants, it did not affect Ihe validity of the transaction. Thp cutting waa probably a little to the north, and if a vett'ge of it had been seen when they visited the ground, it would have greatly assisted them in determining the bound irv. All the defendants assert that immediately the exchange was' nitric, the Perseverance Company proceeded to make a cut. Clayt m absolutely denied this. It was impossible to tell from_ the ground where the cutting was. (His Honor here read portions of the evidence rei gar ding the exchange land.) The

jury, he contiuued, would have to make the best of the evidence, and fix the extent of the exchange. He reminded them that Clayton absolutely that any such exchange was made. As to the quantity of stuff , that came from plaintiffs' to defendants' claim, Clayton estimated the quantity at 37,000 yards of solid; i Evans estimated it at 36,000 yards. ' These estimates were formed by miners judging from their experience. Attempts were made to measure the quantity, but the jury must not tako these into account, neither must they accept the estimates without consideration. Margetts thought 30,000 yards of stuff had gone into defendants' claim. . This placed the quantity at between 30,000 and 40,000 yards. Then as to the value. Supposing the stuff were coals, the proper way to estimate the damage would be ascertain the number of tons weight, and then lis value at the pit's" mouth. But they would not do this with auriferous earth, it was not usual to sell wash dirt at the claim's edge, though in some colonies, quartz was thus sold. The jury must estimate the .value of the gold contained in the dirt — that is the value of gold it contained to the defendants. This was a very rough mode, but it was the only one that could be adopted. The mode plaintiffs assessed the value had been described. They took out quantities of dirt from seventeen different place?, and estimated that one cubic yard of solid was equal to 43 cubic feet of the stuff they tested. That seemed fair enough. From the test, they valued the stuff at ss. (kl. per cubic yard ; they allowed Gd. per yard for working, a trifle over 3d. of that being for stone, which loft the net\:ilu'j al' *.'.• stuff ss. per cubic yard of solid. Giving the plaintiffs all credit for honesty, their test was subject to allowance. If they had callr-d m uninterested indifferent parties, the test would be entitled to more weight. The jury did not know what proportion of the stones was rejected. The plaintiffs selected their stuff, selected the stones, and selected their boxes. Regarding the boxes, one witness had stated that as much as 3 ounces of gold bad been got out of two bosp". but they had beon broken up an-! every particle of gold taken out. No doubt gold would get iato nailhoU-s and cracks, but it would take more trouble to extract than the process adopted by plaintiffs. The value of the stuff was estimated by defendants at 2s. per yard. If the jury came to the conclusion that plaintiffs were entitled to damages under the third "count, they would have to state the whole amouut, and also a smaller amount as , due from the exchange and Speira' ground — assuming that the exchange had taken place. Having done tthatt t fiey would have done all that was reqnired. Mr. Barton asked his Honor for further directions on tun folio wing points: — That with regard to the boundaries of their claim the onus probanli lay upon plaintiffs,, and if they could not find position of the exchange, they should give a verdict for defendants, as there was no evidence to show that any ground had 'rt>me clown beyond the exchange ; also on the effect of the blast of 1868 -md the water used by plriiutifts ;,and that Adams had no ri^hr to leng'her the lines or alter the bouud-uies shown on the lease. His Honor on the first point said the onus probandi of their affirmative plea lay in defendants; and called the attention of the jury to the evideneo relative to the blast of 1668, and the water used by plantiffs; alao directinthem as to the survey. Upon the request of Mr. Maoassey, the jury were directed to bring in ppecial findings as to Speirs' purchase and the exchange. The jury then retired. (The verdict has already been given.)