TRESPASS ALLEGED

Evening Post, Volume CXVIII, Issue 23, 27 July 1934, Page 14

TRESPASS ALLEGED

A MINING RIGHT

FARMER'S CLAIM FAILS

(By Fetegraph-r'ress- Association.)

PALMEESTON N., This Day. In the Supreme Court before Mr. Justice Ostler, William Roy Kelly, a farmer, of Tokornaru, sought an injunction against Edward Ralph Martin, miner and prospector, to restrain the defendant from trespassing on certain property.' He asked that the defendant be declared a trespasser, and claimed £100 damages. The plaintiff alleged that the defendant had been in possession of, and trespassing upon, portion of his property for many months and refused to vacate it. ' , : The defendant claimed that ho had: a legal mining option granted him by the plaintiff in 1930, and maintained that he-had a right to hold and work any mineral deposits him by the Commissioner of Crown Lands; Lengthy . . evidence was heard, in which the defendant produced a document giving him the right for ten years to search for minerals on the property. He alleged that the plaintiff had counselled all who came to the property to have nothing to do with a syndicate which the defendant was endeavouring to form. .. The plaintiff alleged that he had never seen anybody working on the. property or performing mining operations there. '■■■.■ The Judge said that the mine might be no good, but he had to determine whether it was proved that the defendant was trespassing. The plaintiff could not succeed in his claim, the agreement giving the defendant an exclusive right to search for minerals. There was prima facie evidence against alleged trespass. In his honour's opinion it was plain that he had not discharged the onus of proving that-the defendant had broken the covenants of the licence, as by telling people to have nothing to do with the project the plaintiff had prevented r the performance of the covenants and could not possibly complain of a breach of contract. Even if there was a breach, it was the duty of the grantor to give notice in writing determining the licence. Even if the defendant's wife and family were trespassing, that was a matter for separate action, as defendant himself was not. ■ • . Judgment was given for the defendant, who conducted.his own. case.