IMPORTANT MINING CASE.

Otago Witness, Issue 2086, 15 February 1894, Page 12

IMPORTANT MINING CASE.

MAGNUS AND EVBRITT v. ANDERSON.

This was an appeal to the District Court at Queenstown (heard on the 25th January), by way of rehearing from a complaint heard in Alexandra before Me Warden Wood in October last.

The facts placed before the warden shortly were : — Anderson was registered owner of a water race of four heads out of Butcher's Creek (originally granted March 1866), west bank of the Clutha river, commencing 400 yds from its junction with the Clutha, and terminating at Butcher's Point, on the other side, or eaet bank of the Clutha. The race was about 60 chains long, 30 chains being on each side of the river. The race crossed the river by a bridge, which in the big flood of 1878 was carried away and has never been re-erected. It was proved that this race since the big flood had never been used, that the fluming also was down, but that a Chinaman had used part of the race on the east bank for some time, but with water flowing from Coleman's c reek (on the east bank) ; and it was also alleged by defendant that a party of Chinamen had in 1884 worked with the water on the west bank, also that Anderson had applied in July last for a branch race, which had been granted, but that it had not been constructed. The warden in giving judgment, said that "he thought the race had been abandoned and was liable to forfeiture ; but as the defendant, though very lax in not getting tho race repaired, had always renewed his license and for a time had allowed a Chinaman to occupy about 250 yards of the lower end of the race, which the defendant seemed erroneously to have considered occupation, ho would inflict a fine instead of forfeiture." From this decision the complainants appealed.

Mr Gilkison (of Clyde), for respondent, raised the point as a preliminary objection that no appeal could lie from the warden's judgment, it being purely discretionary whether a fine should be inflicted or forfeiture decreed, and in support cited his Honor's (Ward, D.J.) judg-

ment in Sam Kee v. Yon Sam, given at Lawrence in July 1886 ; also Robertson and Craig v. Halliday and Colonial Bank, decided by the late Mr District Judge Broad in Queenstown on March 10, 1888, and reported in the Obago Daily Times of March 27, 1888, in wbich the learned judge said "the exercise of the discretionary power of a warden is not a decision within the meaning of section 249 of the Mining Act of 1886, and no appeal lies therefrom " ; that his Honor was bound by these two judgments — one of which had been pronounced by himself, — and that therefore there was here no decision to appeal from.

Mr Macdonald, of Alexandra, for appellants, pointed out that his Honor's judgment in Sam Kee v. Yon Sam was under the act of 1877, section 97, by which section the substitution of fine in lieu of forfeiture by the warden was purely discretionary, but that under the present act (1891), section 143, and also under the Amendment Act of 1887 (No. 13, section 4), which act wa3 in force when Judge Broad decided the latter case, cited the words " upon sufficient cauac shown " had been inserted, the words being : " The warden may in any case, on sufficient cause shown, substitute a monetary fine in lieu of forfeiture ; " that those words made it far from discretionary ; that, in fact, there was no discretion at all. The warden had first to find a fact — viz., was there sufficient cause ? Then, if he found as a fact that there was sufficient cause, that the word " may " must read < ' shall " ; that the exercise of this power to inflict a fine in lieu of forfeiture became imperative immediately the warden found the cause "sufficient." Of course he had to some extent a discretion — i.e., he had to use his discretion as to the sufficiency — but that he had to decide, as a fact, whether or not the cause was sufficient ; that were the case before a jury the judge would leave it to them to say whether or not the cause was sufficient; that the judgment of Judge Broad was clearly bad ; and, in his (counsel's) opinion that that judgment had been given, simply following his Honor's (Ward, D.J.) judgment in the case Sam Kee v. Yon Sam," without the different wording of the section — namely, section 97 of the act of 1877 and section G Amendment Act of 1887— being carefully considered and compared. Under the former section, where there were no such words as "on sufficient cause shown," the warden's power was discretionary, but under the latter section he must arrive at a decision, and therefore the appeal lay.

His Honor in decidng the point said that the words "on sufficient cause shown " clearly made it necessary for the warden to decide on a question of fact — i c, was the cause sufficient ; he must decide whether or not there was Bufficiency of cause. Under the act of 1877 no such restriction was imposed. The question,

then, was purely one for the discretion of the warden, and he did not require to decide anything in substituting fine for forfeiture. He (Judge Ward) must hold that there was a decision ©n the part of the warden, though he did not quite agree with Mr Macdonald that the word "may " must read " shall" after the sufficiency of the cause had been ascertained. He thought the warden could use a discretion, but he must first arrive at a decision, therefore he considered the appeal lay. In opening for appellants, Mr Macdonald said that he wished to say that he had certain fresh evidence, which, had he produced it before the warden, might have materially affected his decision, and possibly forfeiture would have been decreed. He did not know of this evidence till too late to apply for a re-iearing in the lower court. Evidence was then given by Messrs John Magnus Lewis Cameron, August Cameron, and James Coleman on the part of appellants. For respondents, Mr Anderson alone was called. Mr Gilkison submitted that the fact that a branch race had been applied for and granted, and, he submitted, partly constructed, though it did not lead out of the race, but only out of the creek at present, and the further fact that certain Chinamen had at different times been working with water in the race, and also that the erection and completion of the bridge and race meant a good £2000, and respondent was a poor man, should all be taken into consideration and should be considered sufficient cause. It appeared, too, that appellants had been in treaty for the purchase of the right, but, instead of completing, had, without warning, laid their complaint. Counsel cited a decision of tho late District Judge Wilson Gray, in which for abandonment of two and a-half months a forfeiture was not decreed, but fine substituted. Counsel hoped that the court would not deal hardly by respondent, who was a poor man.

His Honor, in giving judgment, said : Two and a-half months was a very different thing from over 15 years. Here it was an admitted fact that the bridge that is midway between the head and termination of this race, carrying it over the Clutha river, had been down for the last 15 years, besides the other flaming. It appeared to him that no just cause had been shown why a fine should be substituted for forfeiture. Did Mr Gilkison seriously mean to contend that because a Chinaman had been using a certain part of the race at the end of it with foreign water, that that was a reason for substituting a fine P As to the branch race, it headed out of the creek, and had nothing to do with the race. He considered that Anderson was simply trying to hold on to the race for no other purpose than to make money out of it by sale. As to the alleged negotiations for purchase, they had been denied. He should decree forfeiture. .-Appeal allowed, with costs in District Couei.'"Forfeiture decreed on ground of abandonment. Complainants to ba put in j possespioa of right and race so abandoned.