IMPORTANT MINING DECISION.

Otago Witness, Issue 846, 15 February 1868, Page 3

IMPORTANT MINING DECISION.

itoßlifSON, JLPBBLiLAara; BLU,NI«BLI.,'JRE-3PONJMBNT;-t-!Ihe" following- judgment-was delivered by Mr Justice Chapman^ at the sitting in Banco on the fth irist : — This is an, appeal' from ,a decision o£ Mr Warden Croker. The appellant was the plaintiff below.- He complained that the respondent, the defendant below, had trespassed on certain land which he, the plaintiff held under five agricultural leases, dated in 1865 and 1866, before the Goldfields Act of 1866 was passed. Thei defendant justified under a license or certificate , entitling him to cut .a water race, which license, under the Goldfields Act of 1862,; and the regulations made under the authority of that Apt, is of date prior to.,the dats of the said leases. The case was heard at Lawrence, before the Warden and assessors. The latter found .that the defendant had not trespassed, and he had judgment accordingly. From this judgment the plaintiff appealed to the District Court, and a case has been stated for the opinion of this Court, under the 83rd section of the Goldfields Act, 1866.

The question which this Court has to decide is thus stated :—": — " Whether under the circumstances stated, the leases under which the appellant occupies, so override the licenses of the respondent as to disentitle 1 ' him to enter upon the appellant's land without making him compensation."

The appellant's leases are five in number '; four of them were granted in 1865, and the fifth in January, 1868, before the passing of the Gold fields Act of 18G6. There is a great deal in the case relating to matters with which, as I understand the question before me, I have nothing to do. Notwithstanding the words "under the circumstance stated" in the question which I have quoted, I understand that this Court is called upon to decide the question whether the respondent's right to cut a water-race which he had acquired in 1863, and extended in 1864, is determined by the leases of 1865 and 1866. " The appellant," it is stated, " wished to rest his case on the point thus decided ," and as the option was put to him, I must presume that "wished" is equivalent to elected. As I understand the contention of the parties, therefore, I am to reject from the case all that relates to forfeiture and abandonment, and, as it seems to me, to disregard also the leave and license given by Brown, the assignor of the then inchoate right to the leases -subsequently issued to the appellant. These several questions are so mixed up in the case, and so pervade the whole, that I am not quite sure whether I rightly interpret the intention of the parties ; but when I refer to the points alluded to as " the point thus decided," and read "wished" as "elected," i.e., exercised the option given to the appellant by the learned Judge, the words " under the circumstances" have very little, if an}', meaning. It may, however be useful to state that I concur in the distinction taken by the learned Judge, between liability to forfeiture and actual forfeiture. Forfeiture can only be worked by the judgment of a competent tribunal, lawfully set in motion for the purpose ; and in a litigation between parties similar to that before the Court, it is not competent for one party to say that the acts cr laches of Ms adversary amount to a forfeiture ; and, therefore, that he has lost all his rights. Even in the case of goods and chattels forfeited for felony, " they are not in the King without an office found, because the property cannot alter without matter of record." 5, Co. 109. I think also that the question of abandonment or relinquishment was not before the District Court, and is not properly before this Court. The learned Judge was right in saying that he had not materials sufficient to enable him to decide ; and it 'is very ■questionable whether evidence of abandonment would have amounted to anything more than evidence of liability to forfeiture. I think I may also dispose of the verbal leave and license derived from Brown, in this manner : That could be no more than a revocable license which would be revoked by implication when Brown assigned all his rights to the appellant. T!;us we come to the only question really in litigation between the parties — the conflict between the respondent's right to construct a race under the Goldfields Act of 1862, and tlie Regulations, and the subsequent leases to the appellant. The respondent's right commenced in 1863, "by purchase from prior holders." He then cf*ne under the Regulations which are described in the case, as published in a small blue book, but they are repeated in the regulations described, as published in a small yellow book. Both are similar worded, and they were made under the authority of the Act of 1862. The sth section of that Act authorises the 'holder of a Miner's Right to occupy for .mining purposes, waste lands, comprised

within a Goldfield, and I cannot doubt that the constnictionir of ! a water race, to convey water for the use! ©^miners,' is a ". nuning.purpose," mthihihe meaning of , the Act. The Regulations .printed in 1863 and 1864, so considered it, and'l have no doubtj. rightly.. t Any .doubt' that' mayhave existed on that point, is set at rest by the 9th section of the Act of 1867 ; but that section is declaratory, and only states what the law was before the passing of the Act ; and, in Victoria, where the s\ibject has often been considered, it has always been held, that the making of a race is a " mining purpose"' within the meaning of Acts, from which all our Mining Acts are more or less borrowed.

What then is the nature of the right, which the holder of the instrument called a Miner's ■ Right acquires in the waste land of the Crown, under the Goldfields Act, 1862? On the one hand, it is clearly not an estate, for that has a technical meaning which the nature of the miner's enjoyment does i;ot amount to. The certificate which the Regulations provide for, iB often called a license, and is so designated in this case ; but we must not permit our judgment to be clouded by the use of a word. A mere license in law is revocable. If I give another leave to enter and pass through my land to-day, I may revoke that leave to-morrow. This was the well-known decision in Wood v. Ledbitter, so often cited to show that a mere license is revocable. But, although called a license, is not the certificate under the Goldfields Regulations of 1563 and 1864, and the occupation under it, something more? The word license, indeed, seems rather to be the popular designation of the instrument, than a word designed to express the legal right of the holder of the Miner's right. What the Miner's legal right is, must be sought in the Act of 1862, repeated, with more or less elaboration, in the subsequent Acts. It is a right "to occupy, for mining purposes, the Waste Lands of ' the Crown within the Goldfields." Now, the very expression of the purpose seems to assume two things, namely, permanency, or a certain measure of permanency, and the expenditure of capital and labour. It is precisely that kind of right which, one man may confer upon another by grant — a right to a beneficial enjoyment in the lands of another : not an estate in the land itself, but a right to reap some beriefit from the land. It is, as it seems to me, that sort of right which is properly called an easement. It is an incorporal right capable of transmission. This right was vested in the respondent in 1803, but at that time not in such a way as to touch the land comprised in the appellant's leases. In 1884, however, he secured a further license to extend his right along a course (specified in detail in the case), which would ultimately carry the race through the leased land on which the alleged trespass was committed.^ He renewed his certificate, and so continued his right xinder the Goldfields Act, 1865, by a license, No. 470, dated Sept., 1866. It seems to me, therefore, that at the very earliest date of the leases to the appellants, May, 1805, the Crown had, by the Statute and Regulations, irrevocably conferred on the respondent an easement in the waste lands of the Crown, which could only be put an end to by judgment or matter of record. It is analogous to the case of A granting to B a right-of-way on his own lands, except that the easement in the case before me is created by statute. When, therefore, the Crown, under the authority of the 34th section of the same statute, grants what is called an agricultural lease of the same lands, it can only grant subject to the previously created right. The Crown, like the subject, can grant no more than it has. If the Crown has demised for a term, it can afterwards grant in fee, no doubt, but only subject to the term ; and in like manner, if the Crown has granted an easement, the subsequent demise is subject to that easement. The learned Judge, in considering the operation of the lease, appears to have been much impressed by the words in the s+.h5 + .h section of the Act of 1862, "except as against Her Majesty ;" but the distinction which he himself has drawn in the case of forfeiture is analogous to this case. The Crown must enforce its rights in the same manner as the subject — through the Courts of the Queen. A subject even in wrongful occupation must be ejected by process of law. It is true the proceedings differ in form, but the principle is the same ; and the Crown cannot dispose even of the questionable right of an occupant, so long as it is unquestioned, by granting the thing enjoyed to another. Whatever rights the Crown may retain against the occupant, they had not been determined at the date of the subsequent grant of the first lease ; and, therefore, I am of opinion that the leases were subject to the preceding right. I have ventured to characterise that right as an easement. It is certainly not an estate. It is not a mere license, the very nature of which is to be revocable. Confining

myself, 1 therefore. /fio \&e only question submitted j and,, which Ikave already read, 1 answer that 'question in. the' negative ; and, therefore te the appeal is to be dismissed', without costs as regards the proceedings already had in the District Conrt." * \ Appeal dismissed. '