WARDEN'S COURT, LAWRENCE.

Tuapeka Times, Volume XVIII, Issue 1168, 5 August 1885, Page 5

WARDEN'S COURT, LAWRENCE.

The following evidence was taken in the above Court, before W. H. Revel), Esq., Warden, on Friday last, in the case preferred by the Gabriels Tailings Co. against the Great Extended Sluicing Co., by which the complainants sought to recover £150 damages and applied that an injunction be put on the defendants' workings so as to prevent the water from their claim damaging the complainants' workings. ■ , * Mr M'Coy and Mr Mouat appeared for the complainants, and Mr Finlayson for the defendants. Mr M'Coy, in his opening remarks, said that the complainants held a grant for a special claim under section 93 of the Mines Act, 1877. A ve.y considerable amount of money had been expended in machinery and in getting the claim worked by the hydraulic process. On Tuesday, the 28th July, the defendants, who have recently erected hydraulic machinery, caused considerable damage to the complainants by wilfully and wantonly causing the water from their boxes to run into the complainants' workings, and thereby bringing down a considerable quantity of water and gravel into their claim, which prevented work being carried on. Counsel contended that if this sort of thing was allowed the complainants would be in a worse position than if they had no grant at all. The grant was so worded that a miner might conclude that complainants had no alternative but to allow the water to run into their claim, or to divert its course elsewhere, but "he legal construction was quite different. Such caution would have to be exercised so as not to cause any damage or obstruction to the complainants. In this case the damage done in odo day was more than could be remedied by a month's work, whilst the expenditure of a very few pounds world have Jbeen sufficient to divert in another dirction the water which' caused the damage; and he contended this was the proper course to adopt, and not to wilfully injure or obstruct the complainants. *In support of his contention he quoted from " Brooms Maxraas," page 358 (Turbenville v. Stampe), in which it was held that a person could not use his own propeity to the injury of another. Davis v. Mann (" Addiaon on Torts") was another similar case, whore a donkey was tethered on a highway and a person driving on the highway drove over the donkey and killed it. The person was held liable for the price of the donkey, although 4

I it was deoided that the donkey was illegally

on the road. The main gully was intersected by three tailraoos— viz.,The Otago Co.'a, Hales and Hindu's, and the Nelson Co. 'a The Gabriels Gully main tailrace was not shown on the plan, but the three races were. These races had not been used since the original sluicing was abandoned in favor of crushing some seven or eight years ago. To re open these tailraoes, it would be necessary to make application to the Warden ; but no person could take possession of them unless the certificates were cancelled. The races were granted when the mode of working was by sluicing,and when sluicing was abandoned the boxes in the races were taken up and there was at the present time only a depression in the ground. On referring to the grant, it would be seen that it was stated the special claim was not to interfere with existing rights, and that it was lawful to run tailings over, through, or on the said land. The legal construction of this would be to do so with proper caution and in a legal manner, and not to give the defendants a right to run water or tailings recklessly and heedlessly into the complainants' claim. The grant is a legal document, and in accordance with the 93rd section of the Mines Act, 1877 i it must be presumed that the meaning of the word "claim" does not include a Jease. The meaning of the word " claim " must be the meaning according to the Act, His Worship remarked that older titles would hold good.

Mr M'Coy (resuming) said that a goldmining lease was nst a claim undor the regulations. In construing the grant it must be taken that there are no redundant words, and that every word has its meaning, and the word " claim " must bear the meaning given under the Act. To show how easily the damage could have been averted, counsel said that the legal manager of defendants' claim called upon the complainants' legal manager and asked him to join in doing some little work to divert the water, but the complainants' manager, not wishing to commit himself, declined to do so. In sub-section 17 of soction 31 of the Mines Act, 1877, and clause 1 if regulation 26 of the Act of 1866, it is provided that no person shall back the water of any creek, river, race, or water course upon any claim, or cause any claim to be flooded either wilfully or by ne?lect. The complainants would not be able to work what had cost them thousands of pounds if they could not succeed in getting an injunction, as they could not come on the individual shareholders for damages ; the company being a limited liability company, and the shares nearly all paid up. He called

William Adams, who, on being sworn, said that he was working manager of the complainants' claim. David M'lntoah was working manager of the defendants' claim. On Tuesday, 28th July, the defendants ran water from their boxes which flowed into complainants' claim. The defendant company had been experimenting with the hydraulic process of working. The water brought dow j a large quantity of gravel, as well as flooding the claim, so that the men had to desist from working. The water was on for about 3$ hours, and if it was constantly flowing it would prevent complainants' company working. Witness estimated the damage done tit £250. He could not shift the gravel brought into his paddock under a month, which would be about £90 for wages, and four weeks' water at £14 per week. Witness had set down a certain rule for working the claim, and had acquainted the Directors of it ; but this damage prevented him carrying it out. He purposed running 30 or 40 feet of the top gravel through boxes and filling up the paddock instead of putting it through the hydraulic lift, which would save immense labor ; but now he was obliged to lift the gravel washed into the paddock. The average amount of gold was about 80oz per month. If the water had been allowed to go through the complainants' tailrace, ib might have done considerable damage, as the tpilrace could not can/ the ■water.

To Mr Finlayson ; The tailrace was damaged some time ago, but has been repaired and the hydraulic work resumed. The defendants' boxes are about seven or eight chains distant from complainants' claim. Witness did not know defendants' tailrace, and was not aware that they were at present mining in the main tailrace. He could not say if the Company were mining away the Great Extended Co. and Hales and Hindes' tailraces. He be-

lieved they were working «n some tailraces. 'He did not remember Mr Arbuckle telling him that he was mining on the tailraces. The day previous to the water being put on Mr Mowison asked witness to assist him to divert the water from coming into the olaim and he (Mr Morrson) assisted to put some stones in. He remembered Mr Arbuckle saying that the defendants were complaining of them mining their tailraces away. Mr Morrison asked him to come and prevent the water flowing into the claim as lie did not wish to injure their workings. Witness refused to have anything to do with the water. The tailings have been raised by the Gabriels Tailings Co. a few feet, but if the defendants would erect more fluming they could carry their tailings beyond complainants' workings. He was aware that the defendant company were working before witness jcame to Blue Spur. The tailtoces were pointed ont by different parties to witness, bub they did not all agree. Witnesswas positive he never stopped Isaac M'Farlane working tho Great Extended Co.'a tailrace. Mr Mouat objected to this line of crossexamination, saying it was irrelevant. Mr Finlayson (resuming) said that he purposed' bringing parties who would give evidence tbat witness was informed of the existence of these tailraces. Examination continued : Witness said the water appeared to come along an old tailrace, but he' was not sure if it was the one mentioned on the plan as Hales and Hindes'. To Mr Mouat : Witness never saw the tailrace in use. John C. Arbuckle, statutory manager of the Gabriels Tailings Co., estimated the damage done to {the Company's workings at £150.— T0 Mr 1 Finlayson : Witness was aware of.his own knowledge, that the defenfend&nt company* were carrying on operations' for the' last twenty years. The complainants commenced operations four or five years ago. He did not know the position of the mam tailrace. He received notice from the defendants' manager that they were mining away their tailrace, but did not reply. He remembered Mr Morrison speaking to him on several occasions about the workings. On the 21st July, Mr Morrison and witness had a conversation about the defendants commencing, operations. Witness said he would see one of the Directors (Mr Tanton) about the matter. Defendants' manager seemed inclined to come to some arrangement about the matter, After the damage was done, complainants took out the injunction. He believed the men oommensed working on the following day after the water was run in. 1 John Robertson, miner, said that some years ago the boxes were taken out of the tailrace where the water ran through. He said that it was about nine years since Hales and Hinde used the tpilrace for sluicing. — To Mr Fialayson : He knew the tailraces. The complainants have been sluicing away part of the tailrace that Hales and Hinde used and also the Extended Co's tailrace.

Wm, Peters, blacksmith, gave evidence of the tailrace not having been used for a considerable time, and also aB to the amount of damage done. Mr Finlayson, in opening the case for the defence, referred, to the grant made by the Governor to the. Gabriola Tailings Company .on 4th December, 1879. Counsel said that he was informed that several prior applications had been made for this Bpeeial claim, but; owing to Humorous objections, these

wore refused. The Company afterwards applied to the Governor under the 93rd section of the Mines Act, 1877, and the Warden reported, to the Governor the surroundings of the application, with the result that a grant was made, containing certain restrictions and limitalions, so as not to interfere with the Blue Spur workings, on which had been expended immense sums of money prior to the application being made for the special claim. Certain limitations occurred in the grant, providing for the conservation of existing rights and the main tailrace, the holders of which were virtually the claim holders at Blue Spur. The defendant company and others expeoded large sums of money in buying out residence areas and claim holders in the gully, so rs to get Gabriels Gully declared a main tailrace. If the complainants had a grievance in this case, he (counsel) could only say that this would be the first of many oases which would inevitably arise through the complainants, whom he would term interlopers. It waß specified, as the grant was given under certain conditions, that existing rights should not bo interfered with, and tho holders of tailraces could run their water, &c., on, into, or over the said claim. It was evidently not the intention of the Governor to obstruct the flow of any water from the Blue Spur claims. The Governor also has power to cancel the grant at any titre if he thinks proper. In support of his contention, counsel quoted from "Maxw-ell on Statutes" (pages 19, 20, and 23). His learned friend endeavored to show that "claim " in the grant could not include lease. He (counsel) cited from " Addison on Contracts" (page 164), showing that all the dry facts and circumstances surrounding a case may be taken into consideration.

His Worship : Would that be sufficient to override the interpretation of a statute ? Mr Finlayson continued : The word " claim " must have a retrospective meaning. It would be an absurd thing to say a mining lease was not a claim. He (counsel) quoted from "Broom's Legal Maxims" (page 541) in support of his contention, and said it was I essential that the extrinsic and surrounding circumstances of the case should be considered. The complainants would, as their work advances, intercept the claimholders of Blue Spur from running their tailings into the creek. The defendants held about 14 acres of land under mining lease, and had expended large sums of money in working their claim. Sluicing was carried on for some time, and afterwards crushing, but the Company, finding by the latteY process that they could not get through sufficient dirt, erected hydraulic machinery, and purpose working their claim by tbat prooess. It would be very hard, indeed, if this old Company were to be stopped now. In construing the grant, the whole of it should be considered. The complainants accepted the claim under certain conditions. The Governor could not give a grant to be held to the detriment of existing rights, Counsel submitted that it was a case of " Damnum alsque injuiia"— damage without injury to the complainants. The defendant Company was protected by the grant from any damages that may accrue, inasmuch as they had a tailrace into which they were discharging water. Counsel for the other side tried to argue that the tailrace was abandoned, but he maintained that a mining title was not abandoned till cancelled by the Warden, and he submitted that there was no intentional abandonment of the tailrace, although the Company did not require to u j e it for some time, as they wero mining in the claim adjoining. If the defendants had left the district and abandoned tho claim, the argument of plaintiffs' counsel might hold good. He called John Morrison, legal manager of tho defendants' company, who explained the hydraulic process as used by them. Witness said the company, when originally sluicing, discharged the tailings into Gabriels Gully. The Company was registered in 1866, when it commencsd crushing by machinery. The Company had a tailrace (certifiicalo produced, dated 3rd March, 1864), granted 'to Hales and Hinde, and transferred to the dofondants. The race was not in use for some timo. The tailrace was purchased along with the lease. His Worship : The lease does not give you a title outside the lease. Do you produce a miner's right ? Witness said he had searched but could not find the miner's right. The Company had another tailrace which was partly outside of the lease. The complainant company had mined away a considerable piece of both tailraces. Witnest wrote to Mr Arbuckle, in December, 1884, informing him that they were mining away their tailrace, but they continued working away. His Worship remarked that he was not there to take the tailraces into consideration, but to hear an action for £150 damages. Mr Mouat : The evidence about tailraces is not admissible. Mr Finlayson submitted that he could examine witnesses as to the surroundings of the alleged damages. His Worship: What the witness swears regarding the case before the Court is the proper course. The secondary evidence can be given after. Mr Finlayson j Does your Worship rule that I can not give evidence regarding the surrounding circumstances of the case ? Hib Worship : The grant is here, and it speaks for itself. Mr Finlayson : If Mr Carew were presiding he would know exactly the fpots of the case. His Worship said he could hear the case without bias or prejudice. Mr Finlayson resumed the examination of Mr Morrison, who said the representatives of the different Companies objected to the granting of the complainants' claim. Before the water was turned on, witness went to Mr Adams and invited him to protect his claim from the water, but he declined to do so, Mr Arbuckle was also asked to see what could be done so as to prevent them going to law. Mr Arbuokle said it would be the last thing he would do to go to law. Mr Arbnckle, however, did not come up. The water wasturned on, and the next intimation witness received was an injunction. The water was discharged into Hales and Hindes 1 ta>lrace. Witnesß offered to assist in keeping back the water. If the complainant company are allowed to continue operations, ♦he defendant company, as well as others, word ultimately have to stop working. Witness saw what gravel was washed into complainants' claim, but did not consider any damage had been done. David M'lntosh, working manager of the Great Extended Co., gave evidence of tho water running through their tailrace, also of tho main gully being declared a main tailraco. He was present when the gully was pegged off and declared a main tailrace. The width of the main tailrace was 3, 4 and 6 chains, measuring from the pegs placed on the western tide of the gully towards certain landmarks. Witness did not consider any damage had been done to complainants' claim. Tbe complainants would have to shift the tailings some time or other if they worked the ground. James Campbell gave evidence that it was W. Cumming and he who put the pegs in for the main tail-race, and that it was along the west side of the gully. Edward Lawson stated that he had resided at Blue Spur for the last 23 years ; be knew the tailraces.— To Mr Mouat: The tailrace used was Hales and Hinde's. Witness would still ctU it a tailrace; he had used a similar race. Jtteuben Hill's residence was on the eastern side of the Gully. The main tailraco was measured from the western side.

Gilbert Ralston, Allan M'lntosh, and Isaac M'Farlane corroborated the evidence of the previous witnesses, and likewise the evidence of John Morrison regarding the water running into Hales and Hinde's old tailrace. ' <

His Worship said tbat beforo the case for the defence closed the defendants had be'cee put in thoir miners' rights. Mr Finlayson said he had searched but couldn't find them. His Worship adjourned tho case till ten o'clock on the following morning. The adjourned hearing of the case was resumed on Saturday morning. Mr Finlayson addressed the Court. He stated that the lust miner's right he could find was dated 10th October, 1883, and was a renewal of the same date of the previous year. All the Directors had miners' rights. He was not quite clear as to the date of the miner's right required. His Worship ; You depend upon the Tailings Company to keep the tail race open. The other side wish to show that you abandoned the tail-race. You claim to hold tho tail-race: I want you to show your miner's right. Mr Finlayson : Hales and Hiudes assigned their right to the Company on the 24th January of the present year. Counsel further stated that all that was necessary to be dono under section 23 of the Mines Act, 1877, to register the certificate had been dono. Until the contrary was proved, he submitted that everything necessary had been done. Tho officer who registered the certificate was the proper person to prove that it was not properly done. At the time tho tail-race was assigned to tho Company, the Directors had miners' rights. His Worship : It is a registered Company; I cannot consider individual miners' rights. Mr Finlaysi/n summarised tho evidence previously giveu, and stated that the complainants were not the injured innocents that his learned friend tried to make ouf. If the main tail-race was still open he submitted that his clients had done do damage. He submitted that he had shown enouph to justify His Worship in dismissing the case. Mr Mouat contended that the tail-race previously used by defendants had been given up. They should have applied to the Warden for tho rights they claimed instead of taking the law into their own hands. It was os necessary for defendants to prove justification as for complainants to prove damages. He would ask his Worship to give judgment in favor of plaintiffs, as defendants had done damage to the extent claimed. A perpetual injunction was always granted in cases of trespass of this nature. His Worship stated that as there were a great many points to consider he would give his decision on Monday, 10th inst.; and that in the meantime tho complainants could apply for an additional temporary injunction.

The following is Mr Eevell's decision in the above caso, given in the Courthouse yesterday: This was a complaint brought by complainants against defendants for discharging tailings find water into complaiaants' workings. Several points arose as to different grants to defendants. The plaintiffs held a special claim of twenty-four acres, granted to them in Gabriels Guily, subject to different conditions. There was provision in the grant for the Governor cancelling tho same ; also, for the Warden granting tailracos, &c, jover ground held by complainants. The defendants put in a lease granted in 1871. They also put in a «jerf.ified copy of a grant of a tailrace (No. 1474), dated 14th March, 1864, shown on plan of complainants' graut as an existing right. They also pul. in a main tailrace, and claim to hold an inlorest in this race. These wero the main features of defendants' right to discharge tailings. The word "lease" was not mentionod in coniplainans' grant; only "claim" wus mentioned therein. Furthor on, tho Governor had the right to cancel the grant if complainants interfered with the proper working of the claims known as the Blue Spur claims. Tho word "claim," whore it occurred first in the complainants' grants, did not, he held, include freehold property, such as that or tho defendants. But where the word subaequcnty occurred, it must be held to include leasehold property, as it exprossly referred to the Bluo Spur claims. The tailiacr. hold by defendants was used by Hales and Hiudo for sluicing purposes, and was purchased by defendants from them. This tailraco ran originally through Tolchor's claim ; but it has been altered and raised since it was granted. Hales and Hinde were sluicing with this until about five or six years ago. Afterwards they commenced crushing. Since they stopped sluicing nothing has been dono to tho tailrace to open it out ; and the defendants failed to nroducc a miner's right for said tailrace. tie had no right to cancel or forfeit tho certificate for tho tailrace, but the defendants had virtually abandoned it, and lie must hold that- defendonts have abandoned il . The complainants arc mining on tho main tailracc, the pegs of which are in tho western bank of Gabriels Gully. The complainants, by conditions contained in the grant of tho special claim, would not be entitled to compensation if the defendants held an interest in the main tailracc, but the defendants as a company were not mentioned in the grant of the main tailrace, although snme of tho shareholders in the company were mentioned in it. Ho could not, therefore, hold that the defendants had an interest in tho main tailraco as applicants for it, although individual shareholders in tho Company wero mentioned in the grant o£ the main tailraeo. The defendants, however, could apply to tho Warden for a new tailraco under complainants' grant. He must look at the position of things at the Bluo Spur when tho main tailrace was granted. Iho hydraulic system of sluicing was a new mothod of mining since then , and could not have been contemplated at that time. This mode of sluicing required a larger quantity of water than the old method of Bluicing did. He considered that tho defendants knew that a largo quantity of water would be discharged from their claim by their hydraulic sluicing ; that this water would injure complainants' workings ; and that the complainants hell a special grant for their claim. He held that the complainants wero entitle 1 to protection from the defendants' water; tbat the water of defendants broke into complainants' claim and committed injury ; and that they were entitled to damages for injury done. The amount claimed was £150. He did not think that they wero entitled to recover that amount. Ho would, bowever.givo substantial damages to complainants against defendants for the iivjiny done, as the latter had no title or claim at all to tho main tailrace. By a small outlay the water could have been diverted from complainants' claim. Judgment for £50; costs of Court, £1 3s ; witnesses' expenses, £1 14s ; and professional costs, £5 ss. The injunction applied for was refused.