WARDEN'S COURT.

Westport Times, Volume II, Issue 331, 22 August 1868, Page 2

WARDEN'S COURT.

Tuesday, August 18. i (Before Dr. Giles, Warden.) LUKE AND PARTY V. PERRY, NICHOLLS, AND PARTY. Dr Giles now gave judgment in this case which lasted all Saturday, and a large proportion of Monday. It was as has been previously stated, an action for encroachment, the plaintiffs averring that the defendants were illegally on their ground. The Warden said, that in determining this case there were many difficulties to meet, though as to Perry and party being the discoverers of the ground in question there was no doubt. The interpretation of the new rules under which the present complaint was made, involved many and highly important interests, but it was necessary to so interpret them as to follow equity as well as law in case the circumstances appeared to require that the strict operation of law should be alleviated by the equitable powers given by the Court. The difficulty however was to get at the equities of a caseiwhere there was sue ha conflictof evidence about pegs, and discrepancies in surveyors' plans. (Strong remarks on the conduct of surveyors in coming into Court as advocates. In reference to the rules for tunnelling ground, they could not have meant that tunnels should be driven through other mens' parallels. Such areas as that held by the complainant are unauthorised, and special protection is needed for them. There were instances in which equity might modifiy the strict application of law, such as mere jumping, or such arrangements as the complainants in this case alleged to have been made among all parties, To ascertain if this was a case of the kind, it would be necessary to review the facts as disclosed by the evidence. Eirst the complainants allege a general consent about frontages and tunnels going in through other parallels, defendants joining in this, and then turning round and pegging out ground where they had been on sufferance on one lead of gold only. The defendants on the other hand demand this, and charge the complainants with recently pegging out this ground, With regard to the evidence as to the run of the lead, he gave the preference to the plan exhibited by Mr Coe. In reference to the pegs, Luke and Gilchrist say that they put in the two east pegs, their other mates saw them afterwards, and say they are still there and this was corroborated as far as the pegs went, by Richard Hume of Davis' party. Nichols said that at the end of June, Luke told him that their extension came up to near the sawpit, and they (Perry,) took their tunnel clear of it. Champion said the same about the outside peg, and swore .that the peg was not near the Orawat,on Saturday,and that it looked lately cut when he did examine it after searching for pegs on his hands and knees, Perry says he and Smith searched on Saturday and found no pegs Smith and Malone said the same, and three of Brown's party knew nothing of Luke's extended line. Veale gave strong evidence, but Norman's was not worth so much. The evidence was irreconcileable. There were collateral circumstances in reference to the pegs, for instance no track was cut round the extended portion of the claim. That Perry and Smith say that Hume and Gilchrist said they did not know the situation of their pegs and said that Luke was the only one that knew. Gilchrist admitted this, and Perrys tates that he went to the Caledonian and asked Luke, who said it was his peg near the sawpit. Next with regard to original intention and arrangement between the parties, the evidence was very strong that they meant to register under new rules. There was no common agreement excepting the common desire to get on the lead, nor agreement to carry tunnels through other

other paralells. If there had been such an understanding it ought to have been more distinct, but Perry's tunnel would not have gone through Luke's claim, as shown to him in June after the alleged extension. If he had tin extension, Perry did not know it, as shown by Luke's own admission, for he says that he only saw the western boundary. Complainants say that Perry and party abused the permission they received to pass through Luke's claim. If they had done so the case would have looked very bad against them, but there was not the slightest proof of it. To sum up all the proof that Luke and party had occupied the ground is quite conclusive, and if they did they had no legal right to it, and there was not any strong case in equity shown, as a reason for modifying the operation of the law, as there was no agreement implied even on Perry's side. The judgment of the Court therefore would be in favour of the defendants.