SUPREME COURT

Otago Daily Times, Issue 22206, 8 March 1934, Page 2

SUPREME COURT

(Before his Honor Mr Justice Kennedy.) APPEAL AGAINST WARDEN'S DECISION vilis Honor Mr Justice Kennedy- wasengaged yesterday in hearing a mining dispute between the Ounce Co. (appellant) and Reginald C. Bell (respondent). Mr J. C. Parcel! appeared for the Ounce Company and Mr W. A. Bodkin and Mr A. J. H. Jeavons for the respondent. The matter in dispute related to a strip of land between the area held by the Ounce Company and the Kawarau River. R,. G. Bell had applied for this strip for dredging purposes, and at the hearing of the application before the warden (Mr H. Gordon) the Ounce Company had objected to the granting of a license to the ground. The warden had discussed the objections, and the court was engaged yesterday in hearing an appeal against the dismissal of the objections.. The application is actually still before the warden as he has not yet completed the preliminary inquiries, and there are other objections to be dealt with.

Mr Parcell said that the Kawarau Company had for some years past held a license for a special dredging claim over part of the Kawarau River, material to the present case. The exact extent of the claim was somewhat in issue, but it was sufficient to say that the company held a license on the river. In consequence of the revival in mining that had recently taken place Bell and patty pegged out and obtained a special claim on the bank of this portion of the river ; and a license was granted for a special alluvial claim'. It was described in the license as fronting on their river dredging claims. Counsel explained that the pegs of the Ounce Company nearest the river were not placed on the water's edge. Down stream the Ounce Company's peg was approximately 72 links from the water and upstream the peg waß approximately 42 links from the water.—lt was this strip of land between the Ounce claim and the river which the respondent Bell and party had applied for. The application had been objected to by the Ounce Company on the ground set up in the form of objection. It would be shown beyond all doubt that this portion of land was actually Bart of the north bank of the Kawarau River and'would be covered with water when the river was high. It was practically speaking a piece of land between high water mark and low water mark. In pegging out the land R. C. Bell had adopted a most peculiar procedure. He had inserted the down etream pegs in a comparatively proper order, but he had not put, any pegs at the top end at aIL He had simply used the pegs of a miner named Grimsley, who had out ft similar area of land further up the river. In effect he had endeavoured to make Grimsley's down stream pegs do service for his own top pegs. To this end he had carved his own mark on the reverse side of Grimsley's pegs, and had constructed indication marks at the bottom in lieu of trenches. Counsel said that they took objection to the practice of using a common peg as not being in compliance with the Mining Act. This was not the extent of Bell's errors, as one of his down stream pegs actually encroached 7ft 6in on to the Ounce Company's claim. There were other irregularities committed by Bell, in that he applied for the wrong class of claim and paid the wrong fees, but counsel admitted that the warden in making the minor amendment to get oyer the difficulty acted rightly. Counsel said that his submissions to the court-were three in number s-rr

(1) That the pegging was defective through the use of a common peg and through the placing of the third peg on an existing claim. (2) That the area of ground in question wa» either part of the Ounce claim or part of the Kawarau claim. (3) That the granting of such a •mall piece of land a»a dredging claim adjacent to the Ounce Claim would cause inconvenience to the Ounce claim

and warrant a refusal of the grant. / Counsel said that the Ounce Company came before the court, as it had before, the warden, as holders' of the license granted, and that they were entitled to the benefits, of the Mining Act in reference to the matter in dispute. The.use of common pegs would make an opening for very grave abuses. A man might peg out a claim without having any pegs at all. The warden would have been justified in making a grant for the area less the company's land, but he had recommended the whole application. It was claimed that it'was conclusive the company's'pegs accurately described the land set out in the license. The land was described as fronting the river claim, and it was submitted that it was not open for anyone to say the land did not front the river claim.

John Rhodes, manager for Ounce; Ltd., said that the respondents* downstream peg was about seven feet on the Ounce claim. On the upstream the respondent had used Grimsley's pegs. The Ounce Company had plant on the strip of laud. If the strip were given as a dredging claim it would probably mean that the Ounce would have to keep shifting their machinery. The land in question was a long narrow strip between the Ounce claim and the river.

Cross-examined, the witness said the claim was supposed to be 19 acres in extent. He could not say whether < he Kawarau claim was a surveyed claim. Bell's pegs from the normal water levsl were 42 links at the top, and the bottom boundary peg was approximately 72 links from the normal water. The strip had never been included in the Ounce claim. He -was not aware that the land was open for application until Bell made his application. V In answer to a question by Mr Bodkin as to what hardship would fall on the Ounce claim if the kawarau bad. held the strip instead of Bell, witness admitted that the Kawarau had the right to dredge the river, and that if the boundary of its area had gone up to boundary of. the Ounce claim it would have been in order for the Kawarau. to have carried out dredging instead of Bell. Witness said he could locate the area of the strip, but that it was not' properly pegged. Machinery had been placed on the strip before Bell's application had been made. They had a certificate of easement for the site on which they had their plant erected. This closed the case for the appellant. Mr Bodkin said that the position was that Messrs Grimsley and Bell were members of a syndicate which held o claim on the Kawarau River known as the Lady Ranfurly claim. That claim had to be surveyed before a grant could, be obtained and the surveyor when making bis survey discovered that there was an area of unalienated Crown land lying between the Kawarau and the Ounce Company's claims and also claims beld by William Bell and others. The syndicate had decided to make application for the area and they had employed Mr H. L. Paterson to peg off the land and to proceed with the necessary application. The first area to be marked >ut was opposite William Bell's claim, and extending up to the lower boundary of the Ounce Company's claim. That application was made in Grimsley's namn. The other claim, the subject matter of the present appeal, comprised an area of land lying between the Kawarau Company's No. 21 claim and Ounce Company's alluvial claim. The area of land was approximately six chains in length and varied in width from 42 links at one end to 72 links at the other. Before

lodging the application it was necessary to decide what was the 'end of the claim that was to be applied for and whether or not the application should be for i»n ordinary claim or an extended claim. It was decided to apply for an extended claim and court fees were paid thereon. The warden, however, had decided that it was not a river claim—that the land formed part of the bed of the stream — and he directed that an amendment be made. Counsel dealt with the provisions of the Mining Act relating to the dispute and contended that the marking out of the claim had been correctly carried out and that no person had been deceived or misled in regard to the area marked bnt. The Act covered the position by giving a rehearing by way of appeal when the whole matter had been disposed of by the warden. Counsel submitted that there would be no conclusive judgment until all the objections had been dealt with.

Henry L, Paterson, licensed surveyor, said that, acting for Bell, he had marked out a claim on the bank of the Kawarau River. He explained how he had marked out the claim. The survey disclosed that the Ounce Company had been granted part of the Lady Ranfurly claim, probably because of the fact that no survey had been required by the Warden's Court.

Mr Parcell: Which Lady Ranfurly claim do you mean—the- one which hns been cancelled or the one recently granted?

Witness said the one recently granted —granted , within the past two years. Witness said be could not say whether the Ranfurly claim or the Ounce claim had been granted first.

Counsel addressed the court, and his Honor reserved his decision. A SECOND APPEAL.

The adjourned hearing of an appeal on law under the Mining Act by Thomas James Samuel and William Samuel (both of Lauder) against the decision of the warden in respect of an application for a prospecting license by Robert Ellis Harding, solicitor, of Wellington, was resumed.

Mr P. B. Adams, with him Mr F. J. Green, appeared for the Samuels, and Mr J- C. Parcell for the respondent. Counsel addressed the court, and his Honor reserved his decision.