Mining Judgment.

Alexandra Herald and Central Otago Gazette, Issue 701, 10 November 1909, Page 5

Mining Judgment.

At tho Warden's Court, Alexandra, un Monday last, in connection with the application of David Smith for a special drodgiug claim of 30 acres on the Manuherikia river and a certificate of abandonment in respect of license 1232 a hold by Morning Star Party, the rosorvod decision of Mr Warden Young was given. At the hearing of Che application at tho October sitting Mr M'Kean with Mr Ryan appeared for applicant, and Mi Bodkin for tho objectors. The decision was road as follows :

David Smith applies for a special claim of 30 acres over portion of tho Manuherikia river and its beaches above Alexandra. The area applied for. includes pait of an amalgamated claim held by William Bringaus under License No. 1232 a, and a certificate of abandonment with respect to this claim is asked for. Bringaus appears to dhow cause why this certificate should not be giveu. The applicant is one of tho holders of an amalgamated claim, by which titles over two non-adjoining claims known as sections 58 and 61 were amalgamated. Tho objector is also the holder of an amalgamated claim hold under the said License No. 1232 a, by which titles ovor two nonadjoining claims known as sections No.'s 47 and 62 were amalgamated, rheso sections all adjoin in tho following order : sections 47, (>[, 62 and 58. Applicant represents a party of working miners known as the Surprise Company. They have dredged flection 58, and desire to dredge through section 62 to section 61 without payment to the objector. They asked objector how much he would take for his claim and dredge, and received in reply an oiler to sell at £SOO, which sum they considered too high. The objector represents a party of working miners known as the Morning Star Company. They dredged portion of section 47, and being satisfied in October, 1908, th it it would not pay to dredge the rem under of tho section thoy decidod to float the drodge down tho river ovor section 61 to soction 62. Tho dredge is still on section 47, and for 12 months they have not carried on dredging operations. Tho applicant alleges that the whole claim must bo deemed to be abandoned by operation of law by virtue of section 185 (b) of the Mining Act, 1908. The objector, however, relies on section 192 (d), and. alleges that the default relied 011 by applicant to establish tho abandonment was caused by reason only of tho occurrence of a natural contingency which could not reasonably have boon provided against, in that tho water in the river has not risen suQiciently during tho past 12 months to enable tho dredge to bo floated down. During tho past few years floods iu the Manuheriki 1 have boon fewer and lower thau iu former years. Mr Fink, whose dredge operated in the Manuherikia, tried for nearly two years to shift it from ouo claim to the other without dismantling, but had ultimately to take it to pieces, and his dredge draws six inches less than the objector's diodgo. In October, 1908, the objector's party on several occasions made eil'orts to float the dredge down, but it became ■stranded aud was left iu this position until July of this year, when during a Hood it was iefloated and an unsuccessful attempt was made to float it down. I'he objecUurs stale that it would have oaken about oue mouth to have taken ill the machinery out and to have put it back in the pontoons at the lower, section. With Mr Fink's experience is a guide, the objectors should, in my opinion, have taken the machinery 1 way from the pontoous, aud then in 4ie July flood, when tho river rose throe feet, the pontoons, drawing about two feet, could have boon floated down. L'uo objootor cm allege no reason except vvaut of capital for not having Gufceu the whole dredge to pieces and*. i'o-orecCod it on the lower section. Li? .ay opinion the natural contingency relied upon could reasonably have been piovided against, aud the objectors were "Ot iog.uly justified iu raiding for a sufficiently high flood to llu.it the dredge down tho river. I an satisfied that the claim lias been abandoned by operation of law. Too • eiiy remaining question to bo cou-.-iidored is whether a line should bo indicted. The objectors invested their .savings iu the diedgo. For some years a reasonable return was obtained, mt during the six mouths prior to Oetobot, J 908, they did not make .Vages, and the dredge becoming itiandod thoy had to earn money elsewhere. They have kept a supply of ;oal at tho dredge, have looked alter i/lie wires, aud been present ready to tssist at every threatened riso iu the aver. They are working in tho vicinity of the dredge ready to commence work immediately on tho dredge ooiug shifted. They have never applied for protection ovor thoir claim, . lud i know of no reason why thoy could nut have obtained protection. 1 mink under all. tho circumstances a small fine ouly. should bo inflicted. If oho ground becomes abandoned again aid a second application is made tho objectors must, under the Act, lo&o oho claim. As to tho application for certificate of abandonment, 1 hold that toe evidence disclosed abandonment by operation of law, but iu lieu of issuing 1 certificate in writing, a lino of £0 is inflicted, and the objector (William Bringaus) is ordered to pay tno applicants' costs, amounting to £9, made up ts follows:—Professional ice, £6 6s, witness (J. Shanahan) 10.->, advertising si'l, aud disbursements 4s.