AN IMPORTANT MINING DECISION.

Otago Witness, Issue 2181, 19 December 1895, Page 37

AN IMPORTANT MINING DECISION.

The following case was heard before Mr Warden -M'Carthy at Alexandra on the 3rd inst. :— Sidney Jones v. C. Paoet and Others. This was a suit for forfeiture of all rights of defendants under an application for licensed holding, which had been heard last court day. At the hearing of the application W. Noble had appeared by his solicitor, Mt Turton, to object ; but the application had been nevertheless approved, the objection being over-ruled. Tne grounds of this complaint were that it was alleged the licensed holding applied for had not been properly pegged. Mr Symes appeared for complainant, and Mr Gilkison for defe&dantd. The evidence of complainant and nine witnesses was taken in support of the complaint. Mr Gilkison moved for a non-suit without cillinsr evidence. Tiia Worship gave judgment as follows :— The def»-n<lants in this cage were on November 4 applicants for a licensed holding of certain lands which at the time of the application were in the occupation of Mr VVilliarn Nohle, with tha consent of a former licensee of the run. Mr Noble lodced an objection which questioned the juris- | dict'on of tfee wardan ti grant the application, i which ohj«cti >n was at .the preliminary hearing on Nu-cr'iber i, NIS9S,N 1595, ov-r-rule-1 The gravamen j of tbc pie-tint complaint is that the lan-l ha.> V> 'en insufßciontly marked, and I mu-.t fiod that the land has been in certain details insufficiently marked. Of this insufficient marking, Mr Noble and the complainant were well aware long before the date of the final hearing — namely, on or about September 23 last. lam satisfied from the evidence that the complainant has taken the proceedings in the present case, not for his own benefit, but for that of Mr Noble, the foimer ,' objector. Now, the preliminary hearing provided for by section 131 of " TheMinins Act 1891 " must have some definite value attached in the direction

of giving finality to the objections which applicants for licensed holdings will be called- on to answer at the final hearing provided for by the same section ; and I am of the opinion that if an intending objector fts aware of an objection to the granting of a licensed holding long before the date lixed for the preliminary hearing arifl doe 3 not then raise it, he is precluded from afterwards raising it, more particularly as the present complainant was aware of the date fixed for the preliminary hearing. But again, if this rule is correct, it applies with greater force to Mr Noble, the former objector, and as I must find from the evidence that tho complainant is simply acting in the interests of Mr Noble, obviously any objection that would apply to Nuble must also apply to the complainant. Then once more, section HI gives " tho warden power to determine all questions with respect to the si.**, measure men t, aud position, of marking pust*, aud the cuts or marks on such posts, trenchc, or boundary marks." Tho section farther goes on to provide that " whei any pist is uot in size, or position, or character exart'y as. required, he shall decide whether any auch post or mark js or is not sufficiently in accordance with the spirit and intention of this act for the object intended su*>je<t to a right of appexl." Now it was admitted by witnesses for th* complainant that they bad no difficulty in ascertaining and defining the laud applie.l for by the defendants. I therefore decide, under section 82, that the land, although not miuked exactly as prescribed, was sufficiently marked in accordance with the spirit and intention of " The Mining Act IS9L" for the object intended by that act in the defendant's application. Lastly, all the provisions of "The Mining Act 1891" relating to the laying of complaints for forfeiture deal exclusively with the forfeiture of rights alieady granted by the wardan, and the subject matter of the complaint in the present ca.-.e is an application not yet granted. lam of the opinion that it is not competent for the warden to deal with an application for the forfeiture of the presumed rights of an applicant for a licenced holding, in a proceeding by way of complaint, for the simple reason that in sivh a case there are no rights to for'eih. The" only Temedy open to the compl.uuants, assuming that they have a remedy, is to lodge an objection either at the preliminary or final hearing, provided for in section 131, befora cited. Judgment will be for the defendants, with, costs (£4 4s).- Dunstan Times.