WARDEN’S COURT.

Western Star, Issue 1002, 25 November 1885, Page 2

WARDEN’S COURT.

Monday, 23rd Novejireb. (Bolt re H. McCulloch, Esq., Warden.) young and others v. W. Baker and F. Bell. —Plaintiffs set forth that defendants hud on the 13th inst, encroached on their claim at the Waiau, and asaed that defendmts be sdjedged to pay costa of the suit and cease interfering with the ground. Mr Wale appeared for the plaintiffs and Mr O’Reilly for defendants. J. P. Young, one of the complainants, gave evidence that his son James Lloyd had marked out a beach claim at Waiau, comprising three men’s groun 1, early in the present month. On going up on the 16th inst. (this date was subsequently corrected by other witnesses to the 14th), witness found Baker and Bell working on the ground. They bad dug a trench through the centre of the claim 3d or 4ft deep and 12ft or 13ft long. Witness asked them if they were aware it was his claim. Baker replied that they did not care whose it was, they were going to work it. Witness said: “1 give you notice that it is our ground and properly marked out,” naming the owners of the graund—himself, his sons James and Arthur. Defendants' said they did not care, they would continue working it, and if lie thought ho was a be. ter man lie could take it from them. —By Mr O’Reilly : The c.aim was marked out with a peg at each end of 300 ft, about 10ft or 12ft above high water murk. There wore also two pegs between, placed at a distance of 100 ft apart, to snow that there was three men’s ground in the one claim. Their party numbered four, holding four men’s ground, but the fourth man’s ground was not in dispute. Witness had not worked in the claim, and did not put a man on. His son Arthur fvorked in it until tho 7th inst, and then went to work at a contract. James had been working in tho claim ever since the Ist or 2nd November. On one occasion last week there was a man representing witness’ son Arthur working there. Tho claim was not first marked as three separate claims, and afterwards as an amalgamated claim comprising three men’s ground. The pegs had, however, been renewed and maintained, as some of them had boon displaced ; but tho new pegs were put in the same spot as they were originally. Witness’ party had got some water rights, but have applied for more. The application was only granted a week ago, but the race has not been cut yet. —James Lloyd Young, son of last witness, deposed to marking out claim in the manner above described. He working about the beginning of November up till the 12th, and since then off and on. His brothers Ernest and Arthur scooped ilia ground with horses and scoop. Was along with bis father when they found Bell and Baker working in the claim. Witness worked in the claim two or three days last week. His br ther Arthur worked in the claim more or less for a week. Tho work was all tide work, and sometimes they could only work for about an hour each day.—Thomas Devonshire stated that he knew the ground in dispute. On the 14th do saw Baker and Bell in tho claim. He had seen Lloyd Young last working in the claim on the 12th scooping with horses. The tide and the weather had prevented work going on a good deal lately. Witness had not been able to work every clay on account of the bad weather. He saw Lloyd and Arthur working three or four days before the 12th. They were working in the upper portion of tlie claim nearest the Waiau. Baker and Bell were working in the centre claim of the three—Mr O’Reilly for the defence submilt' d that the ground was in the first instance marked out as three separate claims, and after it was interfered with by defendants because the ground pegged off was not all represented, complainants Had marked it off as an amalgamated claim. He maintained that thec'aims had not been encroached on. He called Fredrick Bril, who stated that the first time Ire and Baker pegged off the ground was on Friday, the 13th. On Saturday morning they came back and measured it with the tape, and while doing so J. P. Young came up and asked them to desist. They declined ; and worked up till 12 o’clock that day when they got an h junction to cease interfering witlr the ground. On the 10th they were on the ground, ana saw Lloyd and Ernest Young scooping on a claim 10 chains below the oi-e in dispute. On lire 11th they saw coiupiuimiu's putting their stuff over a copper plate on that claim. Witness bad been up at the place on three different occasions and had seen no one working llio ground. The first 100 ft was p.inted out to him us Lloyd Yoii' g’s claim. They pegged off two claims After they had got a written notice from J. P. Young to cease working, tkev bad done nothing there since, an 1 had told Lloyd i Young I hut they din not inten i to have anything more to do with the groun I.— i’lu Warden said the defendants seemed to have given up interference at once. He did not think them was anything in the ease, and was not sure whether there w-is even a question for cosls, but would give his decision on the following clay. Barry v. Fitzgerald and others. Mr O’R.jliy for plaint.ff, and Mr Wade lor defendants. This v/as an action for encrotchment an I tiespiss, to compel defendants to give up possession of a claim alleg d to be the property of plaintiff.—John Barry stated that tie pegged off a b -uch claim at the Waiau on the j./th inst. On one side of him was a claim held by Mathegqn and on the olher by Devonshire, while defendants worked a claim at the back. On the IStb he went to start work and found Patiick, Michael and GaiieU Fitzgerald on his claim, stripping tho gravel off and throwing it into the lagoon, lie told ■ them it was his claim and asked them to leave® it, Michael Fitzgerald then got hold of him® and threatened to throw him into the lagoon.® claim Bnc * had nut done any i HKnTe. Tho claims on &30d ones i aU( -l he exp-

make £3 or £1 per clay out of his one. Ho p-’gge I off another claim before he pegged off ihe one in dispute, not knowing the latter was vacant. He came to know that it was vacant through Mr Devonshire. He had lost four days’ w-irk through defendants’ action.— Thomas Devonshire averred that defendants hold a back claim, but not the one in dispute, which had not been pegge i off until it was mark cl off by Barry. Was present when Barry was prevented workhig. He saw the three b'i zgeral Is surround Burry, and as he thought they were going to 11 scoff ” him, witness went to iiib’i'fere. There had been no gold got out of thai c'aitn yet. —James Barry gave evidence in corroboration of tbit given by plaintiff (Ids brothe •).—Mr Wude, for toe defence, submitted that the ground formed a portion of the claim legally held by Ins clients an! that plaintiff had no title whatever to it. Patriek Fhzgerald said be pegged off the claim between 7 and 8 a.m. on the

17th. lie pegged off three men’s ground, the back claims forming two men’s ground and the one in dispute making up the_ third. When pegging off, he asked Barry to witness where ho had placed the pegs, andj deponent witnessed where Barry had pegged off a claim at another part of the field. When his brothers came at nine or ten o’clock they commenced stripping the ground, and Barry came up shortly after and said ho had pegged off the ground. After a dispute, Barry went away with Devonshire. The plan produced shows how the three men’s ground was pegged off. They pegged in the beach claim to give them an opening to work the back ground.—Angus Matheson said the last witness had come to him asking him to witness where ho placed the pegs. Witness saw him put some in, but left brfore he had

completed marking off the ground. Afterwards Barry came and pegged off the claim fronting the lagoon, which lies between witness’ and Devonshire’s. (Witness here pointed out to the Warden on a plan produced where the pegs were placed).—The Warden said ho did not think that Fitzgerald had pegged off the ground.—He had only put in a peg at one corner. If he had put in a peg at the corner of Devonshire’s claim the same as at Matheson’s claim, it would have been sufficient. _ His Worship thought it was Barry’s claim and considered him entitled to a verdict. Judgment for £3 for loss of time; costs of court, £1 4s; three witnesses, £3; professional costs, £3 2s—total, £9 6s. Bell and Baker v. Young and others.—Mr O’lleilly for plaintiffs ; Mr Wade for defendants. This was an action for the forfeiture

of two men’s ground held by defendants on the plea that it had not been worked, and that all the ground held by defendants was not represented.—Frederick Bell gave evidence to tne effect that he had visited the locality on several occasions and had seen no one working on the claim, and taking it as abandoned, he had pegged off two men’s ground. They could work tho claim the whole day, for when they could not bottom there was plenty of stripping to do. The water did not prevent them from getting bottom, nor did not drive them out.—-Thomas Gemmill knew the ground. Was there first on the 17th, and had been there every day since. On the 19th he saw Lloyd Young and Fred. McLean at work on the claim, The ground was

poggeu on ongmaiiy as tnroa separate claims. He saw a notice posted up claiming protection for three separate claims, held by Ernest, Arthur, and Lloyd Young respectively. He thought the claims were being “shepherded.” There was nothing that could be called work done on the three claims, and saw no work that had been done by the scoop. The document produced was not the one he Saw posted up, or a copy of it, but ho could not describe the difference.—(The Warden hero said that it would be well if copies of all notices paste 1 up were produced in Court). —James Kirktou knew tlie ground in dispute. It had three men’s ground marked off in one claim. Paw it first on the 7th inst., and afterwards on the 17th. There had been no work done between those dales, with the exception of a small prospectinn rift that had been put in. He saw work that had been done by the scoop before the WV>rV r*nnlfl ViA rirmA nn fliA orrminH

every day—stripped i.t high water and worke 1 at low water. —Joseph Akbrson was on the ground on 20th Ociober and had seen Lloyl young working on it. Was there a week after, and two or three times since, and did not see anyone.—After argument between the Warden and Messrs O’Reilly and J. P. Young as to a discrepancy between the Mining Act and the Regulations in the clauses providing [or forfeiture, evidence was taken for the defence.—Thomas Devonshire stated that defendants hid no water to work their claim until they b;ought a rice in. It had not been possible to work the lower portion of the grotin 1 for the last three w.-eks. The upper portion could be stripped, but it would be a disadvantage, i s the stuff would smother up the lower. portion until the ride went down. Witnesi six weeks previously had sunk a hob 2ft. in the bottom of the lagoon before he came to witer. Tnere was 4ft o? sft more water in the lagoon at present than when witness first saw it, which altogether makes a difference between the height of the tides a 1 present and what they were at that time ot from 6ft to 7ft. The best gold-was got at low water mark. J. P. Young had got a waterrace that witness cub in on condition that he (witness) was to have the use of it until he worked out his claim. Witness was the only man who had actively worked his claim during the last three weeks. Defendants’ claim was, however, much deeper titan his.—Lloyd Young said they had not sufficient water to work their claim. His brother Krnest had a water race to work his claim, but it did not command their ground. The lagoon was dry when they first went to work, and they could go through it with a dray. Tde water tint Griffiths used be'o *ged to his Lithe •, but it did not command their cla m. Had not been working in another claim nearly all the time. During the heavy rain there was an overflow, and they got a littlo water from Devonshire.—James Memphis and J. P. Young having also given evidence to a similar effect, Mr O’Roilly called rebutting testimony to show that the ground could have been profitably worked all the time. They could got the water by pumping, besides there was . other water to work the claim.—Jas. Popham said ho had seen six hoses of water at work on the beach, one of which belonged to Young and party. There were two Californian pumps and two spear pumps pumping water out of the lagoon. It would take an additional man to work a spear pump, aud it would put through as much stuff in a day as a head of water; a Californian pump three times as much.—The Warden reserved his decision till 10 o’clock on Tuesday morning. Tuesday, 24th; November,

The Warden gave tho following decision in the case Bell and Baker v. Young and others : —Tho evidence shows that the claim in question, being three men’s ground, has not been worked in the manner provided by the Act and Regulations. Making tho most of the defendants’ case on this point there have not been at any timo between tho Bth and 14th November —the period charged in the particulars—three men working on the claim, Lloyd Young in tho previous case says ho was working in the claim from the beginning of November up to the 12th, and that his brother was working with him three days, so that as a matter of fact tho claim was insufficiently worked. Tho defendants say that they had not the water required to work their claim, that they had a license for a race to bring on water, but it had not been com pletod. If this is tho case, 1 think they ought to have applied for prolection while they were bringing in tho water. But I think it is different as to their other plea that the continuance of bad weather and westerly gales had backed tho tide up so that it was from five to seven feet above its ordinary level, so that, as one witness; states it has not been possible to work tho upper portion of the c]aim except at groat disadvantage. (The Warden hero reviewed the evidence on this point at some length.) It is true that Bell and lyirkton, without special reference had said in their evidence i l ily claim could be stripped at high fi ■■Kid worked at low water, bu t tho a sill Sisir P l ' ’ s 011 the plaintiffs, it lies p { i|M4MwSs» to prove that the claim is liable top fyjiKMtmd I think they have failed in doing j ■ Vluo weight to that portion of th 1

evidence bearing on the effect of the weather and tide on the claim ,1 am of opinion that the case falls under Regulation 100, which provides that “no claim shall bo forfeited for any neglect the consequence merely of the sickness or unavoidable absence of any person nor the failure of water or other natural contingency.”—Judgment for defendants without costs. In the case Young and others v. Bell and others, a verdict would be given for plaintiffs, with 18s costs. |j|The case James Popham v. J. P. Young, an action to obtain forfeiture of defendant’s mining claim; Thomas Warren v. J. L. Young, do; and Joseph Hanlan v. A. A. Young, do, were adjourned till the Ist Dec., on account of the absence of some of the parties in the suits and their witnesses, they having returned to Orepuki on the previous evening.