WARDENS COURT.

Inangahua Times, Volume X, Issue 1561, 15 June 1885, Page 2

WARDEN S COURT.

(Before Mr Wardeu Bird.) Fridvt, June 12th, 1385. Sutherland v. Beech e. This was an application to have defendant fined in Hen of forfeiture for non-compliance with the conditions of grant in respect to a water-right at Boatman's. The case was «rone into at the last sitting of the Court, and judgement reserved. His Worship Raid this was evidently a friendly suit, brought with the object of defeating an action already pending against defendant Such an action would iiavo been legitimate, pmifldod thai there w«ro uo other proceedings pending against Mr Beech". As it wua however the proceeding was rather an underhand way of doing business, and the application would therefore l»e dismissed, and the question of cost 3 would be waived. The action now before the court affecting the waterrights in Boatman's Creek was an important one, and ought to be heard upon its merits. Fiery Cross and Just in-Time Compan iks v. Berche and THr; National ■ Bank. This was an actfon praying for the cancellation of a water-right in Boatman's Creek, on the ground of noncompliance with the conditions of such grant. * Mr Jones with Mr North appeared for the plaintiffs, and Mr Lynch appeared for the defendants. The following assessors were then empanelled — lioWert Dykes, John Ball, Andrew King and Patrick Butler. Mr Jones opened the case for the complaints after which he called the followingevidence :— Robert James Johnston : I am a Mining Engineer, Reefton, and know i Beeehe's tailings plant and the Fiery Cross a;>d Just-in-Time races; the water could be conveyed from the 1 com pa nit 8 battery to Beeehe's plant for nliout £30, and would give about 9ft. of feilL

Richard William Kaithby : I know the Fiery Cross and Just-in-Time battery and Beeches plant ; have lived at Boatman's two years ; Beaches racH was commenced iv April, 1384, I think ; previous to that t lie re was no race in existence there to my knowledge ; did not see defendant at work prior to that ; had he beon at work there I should have seen him ; I passed there almost daily : I was employed by the Fiery Cross Company as manager i of the battery in April 1883; prior to

that I was engaged at the battery ; in 1888 defendant obtained his power entirely from the companies race ; in 1883 defendant arranged to pay the companies for the water : this arrange- | nient was entered into in 1882; I know defendant's tailings plant ; it . was partly .erected in 1881 Ithiak; between 1881 and 1384 the race was being constructed part of the time ; the present plant of seventeen berdans has not been completed more than 9 or 10 months ; in 1888 and 4 the plant was at work with water from the companies race ; if be had had the race constructed in 1888 ot 4 he would not have required the water from the Just in-Time and Fiery Cross. John Gilbert : lam a miner residing at Murray Creek; know the Fiery .battery and defendant's race, and plant ; Beeches race was constructed in about March 1884, and he started cutting it in April ; nothing was done on the line of race till the end of February or March ; no work was done on the race in 1388 ; Sutherland or Beecbe did nothing on the race then ; passed the course of the race daily and saw no work being done ; from 1881 to 1884 &<»*»•» twwrw** perfectly neglected and nothing done ; I passed it twice a day and men could not have been vorkin™ on it without my seeing it; Beeches plant stalled in about 1881, but cannot be certain ; the old plant was connected with the companies l>attcry, but now he has a wheel and bigger plant. By Mr Lynch ; Saw no work done on the race between 1881 to 1884 ; saw no pegs on the line ; trees would have to He cut down, Wut they were not ; there was no ! enching done on the race between 1881 and 1884 ; I used to go down the creek daily ; there was no benching whatever done on the line between 1881 and 1884 ; never s&w any preparations for tiuniing on the line; it could not' be dune without my seeing it ; I never saw it. By the Court : I went over the line twice and three times a day and saw j no work of any kind done Mr Lynch: did not follow along the [ exact line of the race ; the track runs j » close by the race, bat one could not » follow the race live exactly, as it was not surveyed. P By Mr Jones :it wonld take four men six weeks to prepare the benching [ required to lay the fluming ull the } way. r John Lawrie :lam a miner living 3 at Boatman's ; was living at Boatman's " when Beeches race was commenced ; \ it is a little over V 2 mouths ago ; will t swear that the race was not commenfc ced in 1881, 1882, of 1883 ; it may j have been started in 18S4 ; had to s cross the race two or three times a 3 day ; could see the race line all the * way ; there was no one at work ou r the race between 1881 and 188 i : men r could not have worked on the line without my seeing them ; went over the race two or three times a day ; have seen the benching done on the s race; it was not done prior to 1884 ; i the nice is used to drive defendant's f plant ; it is two or three years since t the plant first started to work. William Gilbert : I am a miner living at Boatman's ; know Beeches I race ; it was constructed in February or March, 1884; was there in 1881 and from then till 1884 and did not see anyone engaged on the race ; I was getting timber for the Just-in-Time and was ou the line five or six times a day ; have seen the benching now on the line and can positively state that it was not done before 1884 ; I was working on the line getting timber. By Mr Lynch : I swear that none L . of the benching done on the race was p cut previous to 1884; I swear this t positively. ) By Mr Jones : I don't refer to the I sm;ill portion near .the machine, because that was done f ram the first. r Oeorg* Wise :I am manager of the Just-iu-Tinie Company ; the Fiery » Cross and Jnst in-Time certificate for 1 the water lapsed in 1881 aud again in [ I 1883; Beeche was a director of the ' i Just-in-Time Company from May 31st, \ | ISB2, to Juue 3rd, 1884 ; during that time a conversation arose about the 1 water right; Beech told me himself 5 during that time that the Company's ' water right had lapsed; up to the time defendant constructed his race he obtained his water by agreement ' from the Just in -Time and Fiery Cross 1 Companies; he was paying £1 per week for the water; the companies ■ never prevented him from using their • tail water; the letter produced is in defendant's hand writing; it is an i application for the use of the wheel- ■ water ; from the erection of the battery the company used the water as if there was no other right in the creek ; it was on receipt of the application just read that defendant set up his prior right to the water ; the battery committee had ceased to hold meetings at the time of defendant's claim to the right ; defendant's letter was referred to the machine committee and they agreed to give him what he asked for ; the company are I think still willing to give him the tail water ; the power would be quite as great as that now obtained by him ; the Fiery Cross and Just in - Time have oxpended £7,500 in connection with the water right ; when defendant applied for the water the Fiery Cross aud Just-iu-Time were in dispute ; don't recollect what evidence was given in the case'of Sutherland v. Beeohe ; Beeche was a member of the Just-in-Time and Fiery Cross machine committee in 1884 ; he last sat as a member of the committee in April, 1884 ; lie was appointed in 1882, and sat with intervals till 1884. By Mr Lynch : Defendant was not a director of the Just-in-Time in 1881, or on the Machine Committee ; the certificate lapsed before Beeche was either a director or on the Machine Co.mnittee ; the company's certificate fur the water lapsed tW;c ; defeuduui -■

was not a member of the battery committee in September 1882, but he was a director ; the certificate lapsed in 1882. r . I By Mr Jones : The certificates were in the name of the Just-in Time, and Mr Beeche was a director in that company. By An Assessor : He was not aware nor were the directors aware that Beeche intended to apply for the water right ; later on defendant told me in the presence of another director that he had applied for the water. G. W. Moss : lam manager of the Fiery Cross Company ; the Fiery Cross have been interested in the water rights with the Just-in-Time since 1883 ; it was in Nov. 1884 that the Fiery Cross first heard defendant held anything further than a second right ; up to that time we were under ths impression that our first right had been maintained ; I put in a copy of the answer given to defendant iv respect to his application for the use of the water ; as Beeche was a director of the Just-in-Time and also of the Machine Committee, and acting against the Fury Cross Company, we coaW not give him a direct answer ; defendant has always had the use of the water, and I believe the Fiery Cross are quite willing that defendant should continue the use of the water ; if this application is granted we should be installed iv oar original position regarding the water, and both the Fityy Cross, Jost-in-Tim ? and Beeche will l>e "able to keep on working, but if the application is refused the Fiery will not be able to work. • Thomas North : I am a solicitor residing in Reefton, and was present iv Court when the evidence was given in the case of Sutherland v. Beeche ; the evidence of Mr Sutherland was to the effect that he did not do anything on the race and it was not completed till 1884, and that it was a friendly suit, brought for the purpose of trying 1 to save the cancellation of Mr Beeches interest Beeche was prepared to accept a fine in lien of forfeiture. 1 By Mr Lynch: Sutherland admitted 1 certain work was done, but did not I , : think say anything abeut benching. '' W. B. Archer : lam a storekeeper at Boatman's ; Sutherland and Beech* wore partners about two years ago ; I cannot say whether they are partners '■ now, bnt the goods they obtain for tha berdans are entered to Beeche and Co., ' Sutherland works about the berdana, 1 and they are generally known through- > I out the field as partners. * ' : 'Hits closed the case for the com- ' ; plainants. j Mr Lynch opened the case for the 1 ; defendant, and called the following I ! witnesses: — sj ' Benjamin Mitherland : lam manI 1 ager of Beeches tailings plant, and 1 ; have been three or four y«>r* in that J ; position ; recollect porting notices for " I he race in 1881 ; I put in pegs and > the applicat*?! was granted ; after * posting the notices I cnt the Hr*t sod ; > the survey was then d >ne and some s benching 1881 and 1883 the ■ line was surveyed, and tbe sod tamed ; did not measure the benching done ; I set a man to work and gave him the 1 levels b«t he lost the levels and ran up r hill ; in 1884 the race line was gtown ' over and had to be cleared and ret surveyed ;'it has been in full use sine*; ! between 1881 and 1884 defendant baa * kept steadily increasing his plant; we k j prepared for tbe erection -of extra i plant, and pretty nearly the whole t ; time between 1831 and 1884 we were 3 engaged on the line ; had be expended his money on t'le race he wonld not c have been able to increase bis berdans; 9 I it was always understood that we wet** 9 to make the race ; either he was to make good tvrms with the Fiery Cross B for water, or make the race ; there are 17 berdaus, 80ft. water-wheel, and tbs nstml connections ; the plant is valued at about £2,000 ; we required the B water-race to work the tailings ; there f was no objection lodged against the r construction of the race, and no notice 1 was sent to me saying that they in- * tended te take advantage of oar * negligence ; they could not shut their 1 eyes to the work we were doing ; havt» ' i been short of water several times | lately ; Beeche, having the prior right, 1 complained to the plain tife that ha was not getting the suppiy he was entitled to; they let the water ran to waste when they did not require it. By Mr Jones: Have been working pretty nearly all tbe time at the battery ; believe the machine was standing idle for a month or two ; don't think tbe machine stopped for a year ; cannot say whether I was away from the plant for six months; wan manager of the Golden Arch Company; cannot say how long I was so engaged ; cannot say whether it was six months; I manage the machine when it is working; Gilbert and Lawrie wonld not have a good view of the whole of th* race line ; they could not have a good view of the piece between the stacked tailings to the place where they crossed ; this is wbrre the work was done ; could not give yov is* length of the benching done there ; a very considerable amount of work was done between tbe track and where the tailing* is stacked ; don't think then was much benching done between th* track and the head of the race between 1881 and 1884 ; it is 16 chains from the track to the head of thermos; and 12 chains from (he track to the machine ; cannot say when I got the ap» plicantions from defendant, or whether they were sent out; I made a survey of tbe line, levelled it and cleared it, and pat in the pegs ; cannot felt yo« whether 1 went to the Golden Arch ia February, 1882 ; I understood from Beeche that he kept in view tbe object of completing tbe race; first commenced to use the berdanc in 1*81 ; we used water from the Just-in-Time ; the race was inl<n(U-d to drive aa extensive plant; we could kav* .vM^.jci,u Luc mum uy not puituig

tip additional bardans ; the erection of the nine exra berdans has nawssitatwl bringing in the race ; if Beeche had a good right to the Fiery tail Water he would not have brought the race in ; the raoe could have been constructed if there were no berdans at all ; I made an application to have defendant fined for non compliance with the conditions of his right ; on the advica of defendant's legal adviser that action was brought; I admitted in the case that B*nche had not carried on th« work continnonsly ; I wanted bhe Warden to fine Beeche in lieu of forfeiture; I gave the best evidence I oottM in support of that applUatwn ; I appeared for my3elf on that occasion'; it would not do as well for V.eeche to get a right to take the Wfit*"* from the srheel ; it would cost £80 to convey the water from th* wheel to B^ehe's plant; besides, the battery stops frequently ; a further reason is the Fiery r*oe> is three times as long as B-wehe's and carries down more slime ; if we were to take the water from the battery, defendant's race would go to ruin in fine weather, and then if we wanted to us« it again it would cost a good deal to repair it ; pegged, off the ra«<> after receiving the applications. By Mr Lynch : I put np the app icaiion, and then put the pegs in ; I put th« end pegs in before I put up th« application. . John B. Beeche : I am a%iining speculator and holder of the race in question ; I applied for the race in 1881 ; at the time I knew nothing of the Jnst-in-Tirae ; I wanted the water -to drive berdans ; I had a machirf site and tailings site ; I erected some lwrdans at the time and had a bona fide intention of completing the race ; I had the race in before tli»« comDl^ioj* of the whole plant ; in 1881 I had 8 small berdans onh ; was not in a position to erect all the berdans in 1881 ; always intended to complete the race ; have had the race in «s« 12 months ; cannot say when the Fiery Ooas first heard that I had •btained the first right to this water; the whole plant and race has cost, me A' 2,50 0; when I applied to the Fiery "Cross to lift the wat<«r 1 5ft. higher they would not allow me, so I had to throw out my turbine and bring in the rac« at a cost of £500; it would reduce the valae of my machinery materially to have to take water from the Fiery wheel, we should be liable to constant interruptions ; the Fiery race is much longer and more liable to breakage, t«d my own race would go in ruin ; only got notice of cancellation aftf r I attempted to assert my prior right ; notified them that I was not receiving sufficient water, but they took no action ; they were aware that 7 was increasing my plant, and intended to do so in the future ; I did not mak« nse of any information I received as a director of the Jnst-in-TUne Company, as it was not tillQong after that I obtained my right ; the race cost me £o00;.it means rum to me to have th« rack cancelled ; it is untrue that I took up the right for the ■purpose of extorting ntonfty from plaintiff's ; the plant was idle part of the time.

By Mi* Joneg; The race was in connection with the machinery; I could have constructed the race if I had no machinery at all ; I brought in the race to save £1 per week ; I wanted to have a race of my own ; cannot nay whether it was to save £1 per week that I took up the race ; used the Fiery water from 1883 to 1884. and appl ed for the use of it aft«-r 1884 ; it was 18 or*2o months ago that I found out the Just-in Timp wat**v right lapsed ; I was at th« time a director of the Just-in-Time ; Suther Innd is not a partner of mm« ; he may have baen ; he has never received a dividend ; there w<is no arrangement of partnership in writing between us; I object to answer the question as to whether we are partners ; Sutherland's action was brought on my behalf to cure any doubt that may have existed in my titl« ; forget what evidence I giivm on that occasion ; when J applied in 1881 I was under the impression that the Fiery had the first right, and did not learn differently till 18 mouths *fter. This closed the case.