MINING LITIGATION.

Mataura Ensign, Issue 467, 4 August 1898, Page 4

MINING LITIGATION.

A WAIKAKA CLAIM IN DISPUTE. In Banco at the Dunedin Supreme Court on Monday, before Mr Justice Pennefather, the ease Couston v. McKenzie and others (a motion for writ of prohibition) was partly heard. Mr Hosking appeared on behalf of the plaintiff, William Couston, ironmonger, of Dunedin, and Mr Solomon and Mr Sim on behalf of the defendants, Donald McKenzie, jun., fanner, of Waikaka, and Eobert Samuel Hawkins, a Warden of the Warden's Court for the district of the Otago Goldfields. The statement of claim, made pursuant to rule 455 of the Code of Civil Procedure, shpwed that John- Turnbull, farmer, of Waikaka, is the holder of a lease under section 136 of " The Land Act, 1885," dated the 10th August, 1897, in respect of section 45, block XIV., Chatton district, for a term commencing from the date of the lease and expiring on the 30th June first ensuing after the expiration of 30 years, and renewable on the conditions prescribed by " The Land Act, 1895," and the plaintiff is the mortgagee of all Turnbull's estate and interest in the land. On the Ist June, 1898, the defendant McKenzie applied to the Warden at Waikaia for a special claim for goldmining purposes under the provisions of " The Mining Act, 1891," and a portion of the land comprised in the lease. The slh July was appointed for the hearing of the application, and the plaintiff, lodged with the Warden a notice of his objections to the grant of the application upon the ground that the land so applied for was held under- perpetaal lease, and was mortgaged to him by.Tumbull. On the day appointed for the hearing the plaintiff, by his solicitor, appeared before the Warden and supported his objections by urging that the Warden had no jurisdiction to grant the application on the ground that the existence of the lease excluded the lands comprised in ii from the jurisdiction or power of the Warden to. grant such lands or any part thereof as a special claim, but the Warden overruled the objections and adjourned the further hearing to the 2nd August in order that the survey of the lands might be proceeded with in the meantime. The plaintiff now applied to have the Warden prohibited from proceeding further with the application. Mr Hosking explained that under " The Land Act, 1882," perpetual leases were first instituted, and' that Act was repeated and incorporated in " The Land Act, 1885." The definition of " Crown lands " in section 4of "The Mines Act, 1891," did not refer to perpetual lenses,- but specially referred to leases or licenses for pastoral or agricultural purposes, and said that the expression " except where specially otherwise provided does not include any land licensed" or leased under any Act relating to Crown lands with the right of acquiring the fee simple thereof." Under the legislation relating to perpetual leases, there was no right to acquire the fee simple to any land within a goldfield. An application was made to the Warden some little time ago in respect to the same"piece of land as was now in question, and a special case was then stated for the Supreme Court as to whether a perpttual lease came within the definition of Crown lands. It appeared then that under " The Land Act, 1888," the perpetual leaseholder had the right to exchange his lease for the holding known (is the deferred payment, and a deferred payment holder had a right to acquire a fee simple ; and it was argued that a perpetual lease came within the exception of Crown lands in the section of the Act of 1891. It was then assumed that as the lease in this case was granted before the mining district, in which it was situated, was proclaimed, the Mines Act did not operate, but it had turned out that that assumption was wrong, and application was again made to the Warden, who held that as there was an erroneous fact in the special case which had been stated for the opinion of the Supreme Court he was not bound by the decision of Mr Justice Williams in that case. The point now was whether the Warden had jurisdiction to grant a special claim over this perpetual lease land seeing that the lease waß not, as had previously, been supposed, granted before the Mining Act was brought into operation in the district, but after the Mining Act had been brought into operation. Learned counsel contended that it waa absolutely inconsistent, with the spirit of the Act, and' with all tho legislation on the subject that the Warden should, without compensation to the holder- of the perpetual lease and (he believed) without notice to him, be at liberty to grant the land by way ot special claim. There were provisions for the resumption of perpetual leases where land was found to be. auriferous, and those provisions plainly showed that it \ras not intended that perpetual leases should be dealt with by the Warden unless by way of resumption. When there was resumption compensation followed as a matter of course, but without resumption it was not clear that the perpetual leaseholder got compensation. Counsel exhaustively reviewed the legislation bearing upon the question. At the conclusion of Mr Hosking's argument, it was arranged that the case should be adjourned until the 9th inst., after Chambers. It had been agreed between the parties that-pending a decision of the court on the question the proceedings in the Warden's Court at Waikaia should be stayed, and « telegmm to that effect was despatched to the Warden by the counsel and solicitors engaged in the case.