Right of Way at Phillack.

William Stephens v William Medlyn, Sen.

An  adjourned  suit  to  determine  whether  defendant had  the   right  of  way  to  a   well  at   Upton  Towans. Treve

Mr G. L. Bodilly for plaintiff ; Mr Henry Grylls for defendant.

Mr Thomas Goldsworthy testified that he knew the well on the estate of Pulsack which he farmed from 1847 to 1864 when it belonged to Mr G. F. Gregor.   Once a year he had cleaned up toe leat which he always understood was the boundary of the  estate.     The  fresh  water  runs  into the foul leat and  the people used to cross  the latter  to get to the fresh water.

Mr Bodilly said Mr Grylls should choose whether he claimed  the  right  as occupier  of  part  of the Upton estate or as one of the public.

His Honour—Exactly so.

Mr Grylls —claimed the right may be both by  Act of parliament  and by  dedication.    But  if  compelled to elect on which point be would stand be would do so as the occupier of part of the estate by prescription.

His Honour—It  is either s public or private right,  not both,

Mr Grylls—I take the private right as my standpoint.
   The real defendants in this case were the Dynamite company at Hayle, whose employees have been in the habit of fetcbing water from the well or leat of fresh water.

Mr Bodilly  said  that  there was no private right belonging to the predecessors of the dynamite company. When the Boilingwell  mine  was at work  the adit  from which the water came was dry, so Mrs Richards wad mis-taken in fancying that two boys supplied the 200 persons under her with water from there.   Persons were allowed to come there at different times,  especially during dry seasons, by Mr Stephens, not as a matter of right, but as charity.     The  Dynamite Co   is  the  first  to set up  a  right as owners of the Boilingwell  common  to take water from the stream.

The plaintiff said he was owner and  occupier of Treve and    it    has   been   in   the    occupation   of    his   family for more than 110 years.     He also owned  in fee  this strip of ground by the side of the road.     No one had a right of way there, although  some had been given the privilege of going to the well.

Mr Stephens  was rather flippant  in his replies to Mr Grylls on cross-examination and his Honour said—lt is childish  to talk nonsense, sir.     I  am ashamed to see you act like a schoolboy.      If you do not  answer  the questions of counsel,  which were respectful and proper,  I will send you to prison. You have been given time and plenty of consideration to make your answers as to whether you gave permission to certain people to take water there, and like people  usually do you have wasted  the time of the court. We come here to administer justice.

The plaintiff  said he was sorry  to have  the  reprimand but was answering as well as he could. He could not recol-lect things with exactness.

His Honour—I.have.had no  occasion to speak to counsel.I never saw a gentleman at the bar conduct a case better ; but I detest the habit of many witnesses of chattering in ; the witness box. If they only knew how I am impressed with  short answers they would not be so perverse and thwart the administration of justice.

Mr Robert Kneebone  said  he had  been  ' quite a little way ' abroad.    He worked at Boiling-well mine when a boy and used to fetch water in a barrel from Connor Downs pump.    He used to pick  watercress at the well,  but he never  saw anybody  fetch water from the well in dispute, This was over 30 years ago. He had told this story the gentleman at the dynamite works   who  said it was of no use to him.

At this point   there was a  little diversion  in  court when an inebriated man named Glasson  who had interrupted the court for nearly an hour at intervals, was hoisted out and given into the custody of an affectionate policeman who helped mim into the open air.

James Carne. miner, gave similar testimony.

Mr John Williams, agent  of   Mr   Williams, said he granted a  Mr Juiian   the  use of water  from the well at 5s per week.

Mr  Williams  said that until the Dynamite - works company acquired the adjoining land no  claim  to  right-of-way was raised by anyone.

His Honour decided, that counsel must state their contentions in writing and he will then decide the matter.