APPEALS FROM WARDEN'S DECISIONS.

Otago Witness, Issue 2240, 4 February 1897, Page 31

APPEALS FROM WARDEN'S DECISIONS.

DISTRICT COURT, QUEENSTOWN— MINING APPELLATE JURISDICTION. Thursday, January 28. (Before his Honor Judge Ward.) OLOF MAGNUS V. CHOY GUN AND OTHERS. OLOF MAGNUS V. LV BOW. These were two appeals from decisions given by Mr Warden M'Carthy at Alexandra South. Mr Macdonald, of Alexandra, for appellants, and Mr Solomon (with him Mr Gilkison) for respondents. In the first case an order had been made by Mr Warden Hickgon, under section 143 of "The Mining Act, 1886," directing the predecessors in title of the appellant, who were the owners of a ■water race and right for mining purposes out of Butcher's Creek, near Alexandra, •to let down past the head of their race two sluice heads of water for general use. Tha .appellant refused to obey this order, and proceedings in the nature of attachment for contempt were instituted- against him in the Warden's Court at Alexandra, undev section 269 of " The Mining- Ace, 1886," and section 302 of "The Mining Act. 1891." In the result Mr Warden M'Carthv held the document put in evidence to be bad as an order. A suit was then instituted by the respondents against the appellants for damages for nou - compliance with tho alleged order. The warden then held that the document, although bad as an order under section 143 of "The Mining Act, 1886,'* was good as a notice under subsection 17 of section 142, and gave judgment for £5 against the appellant. The point in dispute in the second cage was whether tho water right of the appellant or that of the respondents, both being out of Butcher's Creek, was the superior right. The warden gave judgment for the re»pondent. From these judgments the appellant appealed. Both appeals purported to be on matter of fact, and the appillaut purported to proceed under sections 280 and 287 of " The Mining Act 1891." The notices of appeal did not give a correct copy of tho minute of decision of the warden, nor did they indicate the particular facts which the appelUte court was desired to try. The notices of appeal did, however, set out several different grounds of appeal, all of which were on mattera of law and not of fart. Mr Solomon said that before Mr Macdonald opened his argument in support of the appeal, he wi»hed to take the preliminary objection that tho appeal had not been properly initiated, and therefore could not be sustained. His point was this : the Mining Act of 1891 (yections 266 to -295 inclusive) gave the right to appeal if exercised within 10 dayß from the entry and signature of the decision in the reeister book by the warden. The appeal could be either on matter of law or matter of fact. If the appeal is a matter of law it is to take the form of a case agreed on by the parties, or if they cannot agree then the case is to iettled by the warden. If the appeal is a matter of fact then the case is to be reheard by the appellate court. In the present cases the appellant had proceeded by way of rehearing as matter of fact ; but the contention for the respondent was that the notices of appeal clearly showed that there were no questions of fact in dispute at all. Therefore the appeal should have been commenced by way of special case and not as a, rehearing. Counsel further contended that the notices of appeal were bad, because they did not contain either (1) a court copy of the warden's decision, or (2) the matters of fact which were in dispute between the parties. • < Jounwl cited subsection 1 o' section 301 and form XIH of the sixth schedule to " The Mining Act, 1891 : " the opening paragraph of section 301 ; sections 159 to 167 (inclusive) of " The Magistrate's Act, 1893": and the Te Aro Loan Company v. . Cameron, XIV N.Z L.R., 411 ; Brooking' v. Wil- " kins and Field, 14 N.Z.L.R., (548 Counsel then proceeded to analyse the notices of appeal and the warden* judgment. Mr Macdonuld, in answer to the»e contentions, replied that there were disputed question* of fact, and cited in support of his argument numerous cases, and more particularly referred to the fourth ground of the notice of appeal in the case of Magnus v. Choy Gun, which iet out that the complainants in the court below (now respondents) "do not legally hold any claim or claims through which Butcher's Creek passes, as the same were never properly pegged." His Honor : Does not that ground of appeal disclose an inference of law depending on questioDs of fact us to what the pegging actually ■was? Mr Macdonald, in leply, said he had tendered certain evidence in the lower court which disputed the appellant's version of what the pegging was After further argument, it being admitted this was the only fact which could bo said to be in dispute, the Warden was called and examined on oath, and said that he could not personally recollect whether the appellant called any evidence in the Warden's Court ; but looking at his notes and observing there no record of any such evidence being called, and it being hit uniform custom to enter tho name of every witness on his notes before he was sworn, he should say it was very improbable that any evidence was tendered on behalf of the defendant in the Warden's Court. Certainly it such evidence was tendered it earned the matter no Author than thejjroHS-examination of tho complainant's witnesses by defendant's counsel. After further argument, his Honor said tlutthe point raised by counsel for the respondents was fatal. There were no diiputed questions of fact, consequently the appeal should have been brought as a' matter of law in the form of a special case. The appeal had been wrongly brought, and therefore he had no jurisdiction. By eoaseat the case of Magnus v. Ly Bow was also stiuck out, the same points as were raised in the former case applying to it also. No costi were allowed in either case.