WARDEN’S COURT.

Western Star, Issue 987, 3 October 1885, Page 2

WARDEN’S COURT.

Wednesday, 30th September. (Bolero H. McCulloch, Esq., Warden.) The case of Jones v, Turnbull and others—an notion by which complainant sought to be put in p-sscssion of a water race at Orepuki and which had been partly heard the previous clay —was continued, Mr O’Reilly appearing for plaintiff and-Mr Finn for defendants. Mr Wndo having opened for the defence, called J. Turnbull, one of tho party of defendants, who stated that he constructed the extension, which was us°d when necessary. The race was never abandoned. When defendants did not use tho ra-'e themeelves they let the water to other people. Tho main race was used constantly ; the party used the extension once or twice a year to wash up tho channel in Sandy Creek. The extension was not in fair order at present, because of the law suit, but it was in good order a twelvemonth ago, and it. could be pub in good repair in three days. Witness purchased his interest in the race about thirteen years ago, at a cost of £6OO ; the extension was applied for four y»ars: ago. The wat-r could bo directed to different, parts of the field. The right had been exercised continually. —* By Mr O’Reilly: The interest I purchased was transferred in the usual Way. When the extension was applied for the usual notices were posted. Did not gazette or publish the notices in a newspaper. The extension was applied for to work a claim in Pott’s Gorge and other purposes. It is between three or four years since tho defendant party was working in Pott’s Gorge. McLean and party were using the water up till about two mouths before litigation commenced —A, Cassels,ono of the owners of tho race, said his interest cost him between £4OO and £SOO. Never abandoned any right; the race was being daily utilised —not the extension. Would suffer seriously in pocket if the extension wore declared forfeited. Besides using the extension to wash tho sludge channel once or twice a year, tbe water was let to other people. Defendants employed wages men. Could not say definitely when the extension was last used. —F. McLean deposed that the extension was worked by the proprietors the same as any other owner wou'd do. Tho race had not been abandoned. Witness used it for eight or nine months, June, 1834, being the last date.—D. Walker said he continued lo use.the water in the extension after McLean knocked off using it. Believed the water was last used by M-mlecs in Nov., 1884.—J. Forbes deposed that tho rate had always been worked, but the extension had not been worked daily. It was not possible to work a race like the extension every day. The race was never abandoned to his knowledge.—To Mr O’Reilly; The portion I use, I work daily. I daily send one o- one and » half government heads through the portion next to ray claim. My claim is next tho bush above the township, about a quarter of a mile above the bote 1 . Turnbull and pir ( y have not worked tho rice for three or four years.—Mr O’Reilly raised the following legal points:—(l), That the Warden had no jurisdiction to grant the license of 1870 to Kirkton and Jewett, as see. 31 of tho Goldfields Act, 1866, only dealt with races on private lands ; (2), That there was no legal transfer from Kirkton and Jewett. By tho express provisions of tho Act, assignments of such interests, being chattel interests, in lands must be by deed, registered in tho office and endorsed on the original license; (3), That tho subsequent transfers wore under tho same objection. One purported to be under a will, another (under which Cassels took his title) by a mortgagee, but there was no registration whatever to show how this was done.—Mr Wade objected that these questions had already been decided by judgment in tho appeal case.—Mr O’Reilly said it was not so, as Judge Ward had expressly stated that ho gave his decision in tho question of abandonment only.—The Warden said that there was no doubt but that Mr O'Reilly was correct; there should bo deeds, and they should bo registered, but this had never been done, and it would be very hard when such largo interests were involved. He would be inclined to rest on tho last renewal. Mr O’Reilly continued. As to the extension of 1881, '.ho WVdcn ha I no juris ration to issue IFons's. By the 31st section of tin Act of 1877 this pnver was vos’ecl in the Mining Registrar, end the las' renewal was the on'y one signed by him. 0 mrsol argue 1 at length ag inst tie extension being merged in one ortiflente with the origin'll race, reading the amending Act of 1883, which showed that wh iv tho titl« lia.fi not b ou brought unler tho Ac' of 1877 the renewals were as under the Act of 1860. Tho extension leug un ler the former 'ct there could be no merger of lit 0 and forfeiture could go as to the extension. As (o the abandonment, that was clearly pro'o l. Tho special claim hal not been workol during tho past four years, and one month’s nmuser was sufficient to cause for,\ iturn. Then the prescribed conditions as to notices in tho papers and Gazette had not b en complied with.—The case having closed Air O’Reilly objected that the defendants were trespassers on tbe coldfield as they were not the holders of miners’ rights.—The Warden allowed Air Wale to put in tho miners’ rights.— Air O’Rei ly then objected tiiat although a miner’s right was sufficient to supjsoit possession to g claim, itAvus not as to a

water ra-e.—Mr Wade vrau then allowed 1,1 put in the licen«pp.— Mr O'Reilly (lien said tKo objections be had take# were now on Iho evidence put in, and pointed out the defect* in ibe license, and renewals, (Joun-el inm.ij. addressed the Court, the Warden said tin; ruse was one that should be amicably settle'. Fie could not midort«ko htlt* acquired under a system tout, had been so long in use, and be would e.vo judgment on Mm question of abaud .u neu. only. He Mi night the balance of evidence was in favor of the defendants— Order a- ce ding!,-, costs £G 18s.— Mr O’Reilly then give null u or appeal, and obtained an order eHojdnproceedings one week. Mr Wade said they w.iu d proceed to enforce the former jii lgmoii'. —Mr O Reilly pointed out (list the Warden could not make an order, at idi-ro was nothing before him to show the result ot the appeal in tho District Court. — Ihe Warden, having referred to the Act, upheld this, and said Le wondered when the judge was going to forward it.—Mr O’Reilly: That concerns my learned friend.