MINING SUIT

Greymouth Evening Star, 19 June 1912, Page 8

MINING SUIT

THE.PEGGING OUT OF A CLAIM

SMITH v. MxDONALD

At the Supreme Court yesterday after noon, before His Honour Justice Dennis ton. the above case Was taken.

This was an appeal frOm the decision of the Warden, Wyvern Wilson, Esq., given at Reefton, in which he held that the appellant (Smith) had not sufficiently complied with the mining regulations in marking out a special claim near Waiuta. The appellant contended that his agent (S. Pry), who had done the actual marking,.' could not conveniently trench the various pegs and substituted finger.posts in lien thereof. The Warden had held that the Mining Act had not been complied with, and upheld the respondent’s objection and refused the application with costs. .

Messrs Sargent and T. V. Byrne appeared for the appellant, and Sir Arthur Guinness for the respondent. Sydney Fry gave evidence at length as to the methods and marks used by him in pegging out the claim. He admitted that trenching had not been done on account of the rough state of the country, but he had erected finger-posts instead. Win. Meates, labourer, Blackwater. gave evidence, in which he declared the markings or finger-posts to be preferable to trenches. In some oases he himself had trenched, but in cases where he carried out the work by himself he had put in finger-posts only. He read the mining rules to allow of the finger-posts being put in where the latter was impracticable. John Phillips,- prospector, Waiuta, visited the ground in dispute on the 4th of February last, and later on the 25th of the same month. The pegs then were all in good order except one, which was aslant on a rock bottom, and he adjusted it. It was most 1 precipitous and rugged country, and it would be inconvenient to go round the claim with trenching tools. Sir A. Guinness at this stage asked for a non-suit. The regulations provided a sure and certain method of marking out a claim. As this ground was previously pegged and trenched, it could not be contended that it was not “convenient” to cut the trench in the present application. That the ground was difficult to trench over did not, lie would submit, prove that it was inconvenient to cut the trenches. Where it is ground that can be conveniently cut he submitted that the trenches should have been made. The proviso in the regulations exempting the trenches, he submitted, only applied in cases where it is impossible to dig the trench, as in the case of such obstacles as largo trees, rocks, Ac. His Honor refused the application foi a non-suit.

j Don. McDonald, prospector at Waiatua, i was then called. He was the objector in this ease. Had crossed the ground often lon going to his work. Took no exception 1 to the corner pegs ,except that they were I not trenched and one was lying down. | The peg lying down did not indicate the side lines. It was convenient to cut trenches on the claim in dispute—he had cut them afterwards with a pick and axe. The ground in question had been held six years and no work done on it. When told the pegs were not according to regulations. |he took and pegged out the ground. It took him five and a half .hours with an assistant to peg out the ground. The only trench that‘gave trouble was the south-west corner, where the peg war found lying down. £7O or £BO worth of work had been done on the claim during the six years. William McGregor, bushman, Waiuta knew the ground applied for by Smith. This witness corroborated the evidence of last witness, and accompanied McDonald when the latter pegged out the area. Rumo Franz, prospector, residing ul Waiuta, had visited the ground in dispute. The south-west finger-post was lying down and gave no indication of boundary litres at this point. Trenches could have been conveniently cut at the four corner pegs. This concluded the evidence. His Honor said that, strictly speaking, there should bo trenching, although.rt war not absolutely necessary in some special cases. His difficulty was that the Warden ruled that the trenching was mandatory The case was one irr which he should not rare to give an off-hand decision on, and would therefore reserve his finding. The Court adjourned at 6 p.m.