SUPREME COURT.

Evening Star, Issue 12882, 3 August 1906, Page 8

SUPREME COURT.

IN BANCO

(Before His Honor Mr Justice Cooper.)

DBWAR'T. BHADY.

His Honor gave judgment as follows in the case of Thomas Dewar v. Henry Brady, heard yesterday. Mr Gilkison appeared for appellant and Mr Callan, jun., for respondent:—

- fhis is a special case on appeal stated by the Otago Land Board under the provisions of section 54 of the Land Act, 1882. The land applied for was marked out by Brady in accordance with tho regulations made under tho Mining Districts Land Occupation Act, 1897, on the 26th January, 1906. He posted a copy of his application on the land on tho evening of the 27th January, 1906, and his application for tho land was received at the office of the Commissioner of Crown Lands on the 31st January 1906. Dewar marked out the same land on the 27th January, 1906, and posted a copy of his application on the land on the same date, and before Brady posted a copy on the land of his application. Dewar's application for the land was received at the. office of the Commissioner of Crown Lands on the 30th January, 1906. Brady therefore was first in point of tune in marking out tho land, and Dewar was first in point of time in postin gon the land a copy of his anolication and in forwarding his application to the Commissioner. Th© Land Board refused Dewar's application and granted Brady's, upon the ground that Brady was the first to peg the land out. Dewar has appealed from tho decision of the Board, 'lhe questions stated for the decision of the Court are:—(l) Was the decision of the Board right in point of law? (2) Was the Board right in holding that the person who first marks out land applied for as an occupation license is entitled to receive the lease as against a person who, having marked out and complied with the Act and regulations, is the first to lodge his application, other things being equal? (3) Was Dewar entitled to have nis application granted under the circumstances stated, or was the Board right in granting the application of Brady upon the said grounds? The question substantially is whether Dewar had, by posting a copy of his application on the Jand and lodging his application before Bradv, acquired nnd er the Land Act, 1892, ami under tho Mining Districts Land Occupation Act, 1894, a superior right to Brady to have his application granted? Tho Act of 1894 provides for the issue within a raining district of occupation leases. Th© Governor has power to make regulations for that purpose, and tho application for a lease is to bo (section 4) as nearly as may bo io m mnncr Prescribed in tne Land Act, 1892, or any Act amending the aamo, and under section 5 of tho Act of 1894 tne application must be referred to the warden of the district in which the land is situate for his opinion as to-whether the granting of the same would or would not prejudicially affect any mining purpose or any mining privilege acquired under the Mining Act. The Land Board has to consider such opinion before giving its decision upon any application. It has also to consider whether the granting of the application will prejudicially affect tho profitable or convenient occupation of the other Crown lands adjacent to or affected by the application; and it may in its discretion grant or refuse anv applications These provisions distinguish the case from GKane v. the Ota£o Waste Lands Board (1 N.Z. Jur., 160) and Roberta v. the Nelson Waste Lands Board 2 N.Z. Jur , 40) in which it was held that an applicant for lands open to selector! under the Land Acts then in force had a statutory right to havo his application granted It is, in my opinion, quite dear that the applicant, if he wi first apphcant for the lease in question, had no statutory right to require the Board to grant h* application, and that the first branch of the third question—nam ly " Was tho said Thomas Dewar entitled to have his application granted under the circumstances stated?"— mu6t be answered in the negative, lhe question therefore is narrowed to this: Has the Board, in exercising its discretion in granting the lease Jo Brady improperly done so? The ground W 7^, ch application was Ranted is that though his application was received f^ r w ewa C s ' he luud marked out the and before Dewar. Mr Gilkison contends that the Land Act gives a superior right to a person who first lodges his application, and that the Board has ignored this superior right which he claims that Dewar has acquired. Applications for the sale, tettmg disposal, or other occupation of Crown lands must be in writing, and delivered at a duly established' Land Office m the district, addressed to th© Commissioner. Under section 59 of the Land Act where any application is made at a Land Umce in a local district, the officer receiving the same is to note th© day and hour at which such application is made, and transmit the application without delay to the Commissioner. There is no provision in the statute for noting the time at which any application is received at the principal Land Office or by the Commissioner: nor is there any provision that applications are to be considered or dealt with in priority according to the time at which they havo been received. Section 62, which appears to me to be limited to applil cations made under Parts DTI IV V and VI. of the Act, provides that all applications shall bo deemed to be simultaneous if made on the same day, and that if simultaneous applications are made for the same land and part of th© same land, l ii °* t>°l 1 ™ he decided by ballot. Part HI. of the Act applies to limited to lands selected for purchase or lease in perpetuity; Part IV. is limited to special settlements and village settlements; Part V. to small-grazing Sins ; and f 7L i *? P*^™ 1 Purposes. In respect to the lands winch may be offered to the E? }l° f r i Se i? lt^ n xmder these divisions of the Act the first applicant may, perhaps, be held under the provisions of sections 138, 163, 168, 173, 190, and 191^, 5t a JT 4 nor T ri S ht te ihose subsequent in point of date. In these cases theTnds are pubigy notified a, open for SStS on the terms stated, and the applicant who offers to take the land upo/Lch tem£ T d *? *?*** th « offerTf f ™ d Ferity in application mav then be a very important factor, and such cvplc of the decisions I have referred to ™f Z a S 1 ®* 11 * the applications are not founded on any public notification, they are applications lor land within a mining district, and the jurisdiction of the Land Board to determine them is derived from the Act of 1894. The lease is granted AL th ? ?o^ rd ÜBder e authority of the Act of 1894 (sections 3 and 6). 'There is no provision in the Act of 1894 giving to an apphcant any superior right because 3 bj& application is lodged prior to that of any other apphcant for the same land, nor is there any provision in the Land Act applicable to this class of lease from which such a superior right can be inferred. Section 48 of the Land Act, 1892, is the section defining the general powers and duties of the Board. Subsection 7 provides that every matter, question, doubt, or difference relating to the sale, letting, disposal, and occupation of Crown lands, or to the interpretation or meaning of any enactment relating to or in connection with Crown lands, or to any matter or thing done under any such enactment, shall be heard and detmnined by the Board, and (subsection 8) the dedeion of the Board on all matters to be by it heard and determined shall, subject to the provisions of the Act relating to appeal, be final and conclusive. Section 5 of the Act of 1894 having given the Board a discretion to grant or refuse any application for an occupation lease, and there being no provision that a first applicant has by virtu© of his application priority, can it be said that the Board has acted improperly in refusing Dewar's application and granting Brady's. I think not. The regu lations require that the land applied for shall be marked out. This was duly done by Brady before Dewar interfered with the land. He did not post a copy of his application on the land at the time of marking out, but the regulation requiring a notice to be posted is a separate one to that defining the maridng out, and the posting of the notice is not a part of th© marking out. In the Mining Act, 1905, there are provisions conferring priority of right. Section 9 of tho- Amendiaecfc -Act, 1905* jjnwides that

.-where two. or more applications are filed in" respect of the same subject matter the prior applicant shall in all cases have the superior right, and priority of application shall • Iks determined in favor of the person who first marks' Out in the prescribed manner the privilege applied for; provided that euch markine out is ■ diligently prosecuted by the making and filing of an application within a reasonable time of such marking out. In the present case the application was for an occupation lease within a mining district. Brady first marked the land out, and within c, reasonable time lodged his application. > The Board appears to have considered that, although Dewar was th© first to lodge an application, yet as Brady was the first to mark tho land out, Brady had the better equity to have his application granted, and to have applied the same equitable rule which, under the Mining Act, a warden must adopt whet© shnilair circumstances arise in reference to two conflicting applications for the same mining privilege. In my opinion, the Board, in doing so, cannot be eaid to have improperly exercised the discretion vested in it tinder section sof the Act of 1894. The answer to the questions must be in the following terms:—Question 1: Tho Board had a discretion to refuse Dewar's application and to grant Brady's. In granting Brady's application it has properly exercised such discretion. Question 2: The Board had a discretionary power under xhe circumstances stated in the case ..to grant Brady's application. Question 3: Dewar was not entitled as of right to have his application granted, and the Board was acting within its powers in granting Brady's application. The appeal is dismissed. I order the appellant to pay £5 5s costs to Brady. SUPREME COURT.—IX CHAMBERS. (Before His Honor Mx Justice Cooper.) Probate was granted of the wills of the following deceased persons:—Elizabeth Shirley (Mr Inder), Hugh Reid (Mr Wilkinson), David Whittock Anderson (Mr Platts), James Haggen (Mr D. Reid), Neil M'Bride (Mr Gallaway), William Brown (Mr Grigor), Mary Thompson (Mr Turton), George Rntherford (Mr Hosking), re Thomas Burke (Mr Paterson). Letters of administration were granted in »he estate of Flora Dunn (Mr Daniel Stewart).

Re Jane Paterson, deceased (Mr Kirk) —Remuneration to executors. —Granted.

Ro Thomas Pugh.—Petition for leave to sell land (Mr Stephens).—Order by consent in terms of petition. Re Clayton v. Clayton.—Motion for directions for service of petition for dissolution of marriage (Mr Hay).—To be advertised once in the Christchurch 'Weekly Press' and twice in ' Reynolds's Newspaper,' London; appearance to be entered and defence filed within 90 days of the last advertisement in 'Reynolds's Newspaper,' and case to be tried at the May sittings of the Supreme Court at Duncdin; abstract to be approved by Registrar of petition, etc., to be advertised. MTntosh v. M'lntosh, divorce (Mr Moore). —This case was set down for the taking of medical evidence at 10 a.m. on Friday. Re James Moss, deceased.—Application for costs on order for remuneration of executors and trustees (Mr White, instructed by Messrs Newton and Borton, Oamaru). — Declined.