WESTPORT WARDEN'S COURT

Westport Times, Volume IV, Issue 705, 1 September 1870, Page 2

WESTPORT WARDEN'S COURT

Tuesday, August 30. (Before J. Giles, Esq., Warden.) HUGHES Y. OYERHAGEN AND PARTT. In this case judgment would be reserved pending the decision of the District judge as to whether further action was barred or any of the issues raised must be struck out. Case adjourned sine die, and counsel to be notified when judgment would be given IIURDOCK AND PARTT V. JOHN WALKER. This was an action for damages alleged to have been sustained by the interference of the defendant with complainants prior right to the water in Ballarat Creek. Mr Pitt appeared for the complainants, and. Mr Pisher for the defendant. The complainants claimed under a certificate dated April 18th, 1867, which had, however, expired in IS6B, and had never been renewed. It was also proved by the complainants' witnesses that the race originally marked out, and for which a certificate had been granted, was never constructed, but that the water used was lifted out of the creek at Walker's head-race. The certificate of Thompson aud party, through whom the defendant claimed, was dated May, ISG7, and he sought to establish his prior right on the grounds that the complainants had never constructed the race for which a certificate had been granted, but had been satisfied to take their water from Thompson aud party, and that the certificate had lapsed in IS6B, and had never been renewed.

"For the complainants it was shown that the omission to renew the right in 1868 was owing to the loss of the certificate by the land-slip, when two of the party, from whom the complainants purchased, were killed. In May, 1868, application was made for a fresh cei'tificate, but it really was onlv a renewal of the right previously granted. Kobert Perry, one of the original pariy who sold to complainants, stated that they did not construct the race as originally marked out, but made use of the site of Thompson and party to lift the water from the creek. There were three rights to the creek, and it was mutually agreed to construct the race conjointly, and each party to use the water in rotation. The understanding also the ground of the holders of the second and third rights was worked out, the race should become absolutely the property of the party through whom the complainants claimed. After hearing further evidence of a similar character, the Warden gave judgment for the complainants for £5 and costs.

The remaining business of the Court contained nothing of material interest.