WESTPORT WARDEN'S COURT.

Westport Times, Volume V, Issue 834, 8 July 1871, Page 2

WESTPORT WARDEN'S COURT.

(Before J. Giles, Esq., "Warden.) Fbiday, July 7.. James Oostello and party v. Patrick O'Brien and party.—The plaint set forth that the complainants are the prior right-holdera of a water right in a storm channel fed by Melbourne Creek, Addison's Flat, and that the defendants have applied for and obtained registration for a head race at the junction of the said storm channel with Melbourne Creek, without notice to the complainants, as required by the rules and regulations of the Nelson South-west Goldfields, thereby interfering with the registered right of the said complainants. On which ground the complainants pray that the defendants' certificate may be suspended. Mr Home appeared for the complainants, and Mr Pitt defended. The Warden stated that he was of opinion that the complainants must be non-suited. The matter complained of was that the defendants bad failed to give notice to the prior right-holders of their intention to apply for registration of a head race. He was not aware that such notice was necessary, as the regulations provided for the maintenance of all superior rights. If the complainants were interfered with they had their remedy, but the mere granting of registration did not constitute any interference. Mr Home contended that, under sec. ix. clause 1 of the Regulations, the defendants, when applying for a race, were bound to have given the complainants notice. The clause prescribed that notice should be given to the Warden, and to nil persons whose interests will obviously be affected. The complainants' interests were obviously affected by the defendants' application. The Warden decided that the privileges of prior water right holders were so guarded by the Regulations that the

fact of notice not having been given could not of itself constitute a sufficient ground of action. Had the complainants been the holders of a dam in the creek the case might have been different. Mr Home then consented to a nonsuit with costs. ADJOUBNED APPLICATION. J. G. Dudgeon applied for registration of a water right to Mountain Creek, which had been previously registered, but the registration had" been allowed inadvertently to lapse. The application was objected to by Jones and party. Mr Home appeared for the applicant, and Mr Bickerton Fisher for the objectors. At the previous hearing of the application, the. matter was adjourned to enable the applicant to produce evidence of the original registration. The Clerk to the Court produced the register from which it appeared that application was made by a party of seven miners for a race to convey thirty-five inches of water from Mountain Creek. The application was dated May, 27th, 1867, and was granted on June 10th, 18G7. In September, 1868, there was a transfer, by three of the original applicants, to Charles Webby of three sevenths of the race. J. G. Dudgeon, stated in evidence, that after becoming possessed of Webby's right, he came to the Warden's Court, Westport, for the purpose of registering his right, and was told by the clerk that he would require to get his name placed on the original certificate. He thereupon saw M'Gauley, who was the only original right holder in the district. M'Gauley referred him to a mate of his, named Neylan, and the latter said that be could not produce the original right. Webby's transfer to him was upon plain paper with an adhesive stamp attached, but the change in the Stamp Duties Act rendered it necessary that the transfer should be on paper bearing an embossed stamp. He sent to Webby to get the matter rectified, and on March 16th, 1871, sent to the Warden's office, by one of his mates, for a renewal of the transfer. He was then informed that the renewal was impracticable, and the money fur the fee, together Jwith all the documents in his possession, had remained in the possession of the Court until the present application. He had been in possession of the race jointly with the objectors ever since he purchased from Webby. The Warden granted the application, subject to any water right duly {obtained during the lapse of the original registration.