The Courts.

Dunstan Times, Issue 1859, 18 February 1898, Page 5

The Courts.

WARDEN’S COURT, ALEXANDRA, Before S. ’E. McCarthy, Esq., Warden. 1 Mokdat, February 7th, 1897, Jogit Patoison-axo Others v. John , Magnus, Claim of LlO damages for that the defendant, on or about the 16th December, 1J97. unlawfuliv trespassed on section 20, block I, Fraser "district, held by the comvlainants as a licensed bolding, pursuan to the Mining Act 1891, and marked out the same as a licensed holding on his own behalf. Complainants also prayed for an injunction restraining the defendant fi m fuithsr interference. . Mr B. Gilkison for the complainants, Mr W. C. Macgregor (of Dunedin) for the a lengthy hearing the Warden delivered judgment as follows . •There are three punts for decision m this case: —(a) Whether the land in dis pute was unworked or unoccupied oi whether there was auy plant or machinery thereon, within the meaning of section 60 of the Mining Act, 1891 ; (5) whether the land marked out by the defep laut on the complainants’ licensed bolding was a valid marking out within the meaning of the Act just oiled, seeing that the defendant applied fora surveyed section and did not erect posts or cairns of stones wrh trenches at the angles thereof ; (c) whether the holder of a licensed holding under the Mining Act 1891 can treat an entry thereon for the mere purpose of marking but another licensed holding in respect of the same land under Section 60 of the principal ket and a marking and following such entry as an invasion of the statutory rights of such holder. • The second point is concluded by authority (sec Pearce v. Greville, 15 N.Z. Law Reports) : and there is therefore no need to discuss it further. Taking the other points In order, the complainants had not, pnoi to the 16th December last—the date of the defendants alleged trespass—worked the land since the granting in the month of April, 1896, except for a period of seven mouths terminating in June in the succeeding year, during which period the licensed holding in dispute had been worked on tribute by a dredge belonging to the Clyde Gold Dredging Company (Limited). Then on the 15th June last the complainants obtained a certificate of protection which expired at midnight on the 15th December following ; and on the day preceding the expiry of protection the complainants caused to be placed on their licensed holding three sluice boxes belonging to another mining partnership of which one of the complainants was a member. No attempt was ever made to / utilise these boxes for the purpose of effectually working the ground , nor were they iu a state which permitted i f their being so utilised, unless in combination with other mining plant or machinery and no attempt of any kind was ever made to effect snob a combination. However on the same day that the boxes were placed on the licensed holding the complainants entered into an agreement with a mining partnership colled the Dunstan Gold Dredging Company, of which another of the complainants was a member, to work the holding by means of a dredge belonging to that partnership. At the time this agreement was entered into this dredge was distant about five miles from the complainants’ licensed holding. In order to remove the dredge it was necessary to dismantle its buckets, which work was commenced on the evening of 15th December *nd the work of removal was continued until the dredge was, after some delays consequent on the state of the river, floated on to the holding, where the dredge was at once started to work and was still working at the date of the hearing. On th® morning of 16th December, between 5 and 6, about five hours after the period of protection had expired, the defendant (tfce complainants’ license for their licensed bolding, apart from the provisions of Section 60, still remaining in force), affecting io do so under that section, marked out as a licensed holding the land the subject of the complainants’ license ; and _ at 9 o’clock the same morning lodged his application with the mining registrar at Clyde. • The contention of defendant’s counsel is that the term • p'ant' or ‘ machinery ’ mentioned in Section 60 must be taken to mean plant or machinery adopted for the efficient working of the land, the subject of the license attacked, belonging to the licensees I cannot adopt this contention. Section 60 is intended to work a defeasance of a title lawfully acquired and must be construed strictly. Tne words of the Sec tiou refer to Crown lands the subject of a mining title ‘ on which there is no plant or machinery,’ and it would be contrary to all the accepted canons for construing Acts of Parliament, to read into the section the words suggested. The adopted construction may lead to curious results, but the remedy lies not with the Warden but with the Legislature. Further, I am of the opinion that the work of preparing the dredge for removal to the complainants licensed holding commenced, as it was, before the pegging out by the defendant and followed up by actual removal thereto, and working theron, is constructive working within the meaning of the case of Patrick v.The Electric Dredging Company. • With regard to the third point there are, no doubt, Victorian cases which decide that a mete marking out of a mining claim within the limits of a similar holding belonging to another is not a trespass, but a method of attacking the title ofthe latter claim ; but the late District Judge Gray, in the case of Higgins v. Dyer, ruled that when Crown lauds were under application to the Warden, even although badly marked, and a person other than the applicant marked out the same ground and in so doing did not follow the rules as to marking, was guilty of a trespass. In the present case the holding attacked was the subject of a license, which, apart from the provisions of Section 60, is still iu force, and the defendant in marking out did not comply with the requirements of Section 48- If, then, a mere applioation can under certain circumstances be the basis of an action for trespass, much mow will a license have the same result (see also Section 139). Judgment will be for the complainants for la, with eosts L 6 fa- An injunction will issue to restrain further interference.