SUPREME COURT—IN BANCO.

Otago Witness, Issue 1006, 11 March 1871, Page 15

SUPREME COURT— IN BANCO.

Wednesday, Bth March.

(Before His Honour Mr Justice Chapman.) The Court opened at 11 o'clock. UK.EA.T EXTENDED SLUICING CO.MPA.NY (UMIMD) V. UAIiKS AND ANOTHER.

Motion for injunction. Mr Macassey appeared for plaintiffs, in support of the injunction ; Mr Smith, with Mr Howorth, contra.

This is an action to recover L3OOO damages for wrongful interference by defendants with the rights of plaintiffs, as occupiers of about 5 acres 28 poles of auriferous land at Blue Spur, Gabriel's Gully. The defendants are alleged to have caused the loss of a considerable quantity of auriferous earth belonging to plaintiffs, by depriving it of lateral support, and thus causing it to topple over. The declaration includes counts for conse?uentisl damages, for trespass, and toe wrongul conversion. An injunction 1b asked for to restrain the defendants, until the hearing of the cause, from continuing to carry oa their mining operations in such a manner as to cause further injury to plaintiffs. The motion was partly argued on the 22nd ult., and the argument was now resumed.

Mr Smithresumedby contending thatplaintiffs had been guilty of unreasonable delay. The declaration and affidavits showed that the lateral support of the land ia the occHpation of plaintiffs was remeved as early as 1866, and the operations of defendants, which tended to remove that support, had continued ever since. This showed a deliberate permission given by plaintiffs to perform that which they now sought to restrain by the exercise of the extraordinary jurisdiction of the Court.

His Honour remarked that if the operations now complained of had beencontinnaafy • new mum of notion b»d wiien every day.

Mr SmitH argued that the plaintiffs having permitted the alleged injury to continue for rour years without taking steps to prevent it, bad given an acquiescence calculated to mislead the defendants, and which disentitled them now to ask for an injunction. The case, as presented to the Court, involved so much doubt as to the right | claimed by plaintiffs that the Court would not expose the defendants to the inconvenience and probable hardship of being laid under a temporary injunction ; but would wait until the questions involved had been duly tried at law. In an application of this kind the plaintiff must show a strong prima facie case. No doubt the riaht of the plaintiffs to ask for an injunction turned upon their right to support. Before the Court granted an injunction ■pewlente, lite, it must be satisfied that the injury complained of would not be retrievable by damages at law. His Honour : That it is not a continuing injury ; and may be remedied by damages.

Mr Smith : There is nothing in either the affidavits supporting the declaration or those filed by defendants which show that the injury is continuing. His Honour : Not the 4000 pounds of gunpowder shaking the very foundations of the place? That averment impresses me.

Mr Smith submitted that His Honour would scarcely grant an injunction until a jury had fully investigated whether such charges of gunpowder might properly be used for mining purposes. The Court could not decide upon the question of degree. There was nothing to show that defendants were not using due caution, and it wonld be a very great hardship to compel them to discontinue operations altogether, for an injunction would come to that, since the Court could not undertake to measure the distance within which defendants might continue to carry on operations. Eis Honour said that was an argument why the Court Bhould use very great caution in granting an injunction. Mr Smith, on the point of the nature of the injury which will enable plaintiffs to ask for an injunction, cited Earl of Lincoln v. Hohart, 3, M. and K. 175. The plaintiffs were deprived of their common law right to lateral support by the fact of their title to carry on mining operations being derived from the G-oldfMds Acts, which implied'y takes away the common law right by conrerring upon all holders of mining leases the right to search in every particle of soil in their respective claims ; and therefore every holder of a miner's right assumes the consequences of his neighbour mining up to his boundary. The Legislature roust have intended to establish this principle, otherwise gold-mining tould not o i conducted on the system nuraaed *t the Blue Spur — Murchie v. Black 34, L.J.. C.P.,337. His Honour : Would you apply that rule to under- mining? Mr Bmith : i eeT. His Honeur : Woulrt you apply it to the case made in Humphries v. Brogdmi Mr Smith did not think that case would arise under the Goldfields Act.

His Honour : I think it does. It is n. well known rule of law that when the Crown grants a freehold, although it grants all other minerals, it does not grant gold. It might therefore happen that the Crown having granted a piece of land containing gold, the question of mining for that gold would arise.

Mr Smith submitted th^t unless the Crown expressly reserved the right to search for metals, it would be a trespasser if it went under ground. Hia Honour thought that very questionable. If the right to tbe gold remained in the Crown, it would seem that the Crown might, provided it did no injury to the freehold, go under tho soil for the gold. He thought tbe great case of Miles v. JPlowden showed this.

Mr Macassey remarked that Miller v. Wifbexh, 2, W and W., supported His Honour's view.

Mr Smitb. in support of his main contention, dte.l Rvbarlv. Wilson, 8, H. L..345. If bhe Gold Fielos by implication, takes away the common law right, of lateral support, then every holder of a miner's right is at liberty to mine in any way that he thinks moat conducive to hi*B own advantage, provided he bo not guilty of neglect nor does malicious injury to bis neighbours. Smith v. Kenrick, 7, U. 8., 515. The right to mine for is a bare right to search for that mineral, and does not confer any settled estate in tbe land. Tho learned ooun&el also urged that the injunction asked for was too vague in its nature, and was calculated to ensnare the defendants.

Mr Howorth followed on the same side, contending that the declaration was defective, inasmuch as it did not show plaintiffs' title and right to mine, namely, a mining lease. The mining lease held by both parties gave a full and free right to abstract all gold from their respective claims, even if such a proceeding should prove detrimental to the adjoining claim holders. Smith v. Kenrick. Negligence was certainly averred in the declaration ; this, he presumed, meant that excessive blasts of powder were used; but the mining regulations, by which the conduct of the parties must be tested, set no limit to tho amount of the blasts. Plaintiffs, before asking for an injunction, must establish their right of action ; and this they had not done owing to the defect iv the declaration. Cubitt v. Porter, 8, C.B.

Mr Macassey, in his reply, pointed out that the case involved not only the right to lateral support, but also the question whether defendants could justify the wrongful user of their land to tbe detriment of plaintiffs. The Court would not consider that the Goldfields Acts took away common law rights unless the intention ol the Legislature to do go wis

distinctly expressed. Authorities cited — Gdli, 396 71 ; Fletcher v. Ryhmda, 4, H. and C, 263 ; Caledonian R. Co. and Another v. Sprott, 2 Jurißt, N. S., 623. Judgment reserved.