MINING CASE IN TEE SUPREME COURT.

Otago Witness, Issue 2258, 10 June 1897, Page 22

MINING CASE IN TEE SUPREME COURT.

IN BANCO. Friday, June 4. KEEHAN V. EWING. Sumtnon3 for issue of wrib oE prohibition. Mr Hoskiug appeared in support of the Bumraons on behalf of Thomas Keenan, and Mr Sim on behalf of John Ewing to oppose. This was a summons addressed to Judge Ward, of the District Court, and John Ewing, miner, of Vinegar Hill, to show cause why a a writ of prohibition should nob, issue to prohibit the District Court and Judge Ward from further proceeding in an appeal to that court under "The MiniDg Act, 1891." wherein John Ewing was appellant and Thomas Keenan respondent upon the ground that the said court had no jurisdiction to hear or determine it. The facts of tho case shortly are these : Ewing is the proprietor of some water races, and Keenau is the owner of a run through which the water races go. The warden made an order under section 105, subjection 16 of " The Mining Act, 1891 " directing Ewing to put up certain bridges acrosi the races to enable stock to be takeu over. Ewing appealed from th»t direction, and brought his appeal as an appeal on a matter of law. When the appeal was called on before the district judge counsel for Keen&n objected that the District Court had no jurisdiction to entertain the appeal, because it could only have been brought as an appeal on a matter of fact. The district judge overruled the objection and proceeded to hear argument on the appeal, which he allowed. Th 9 present summons arose out of those procaedings. After argument, Hiß Honor gave judgment as follows : — I think you are entitled to prohibition. The appaul was from the determination of tb.9 warden in a matter arising out of the administration of the act under part lof the acb. Ifc was not, and coald not be, an appeal from the decision of the Warden's Court under section 261, because the jurisdiction given by tection 261 of the Warden's Court is to hear and determine ell suits and complaints cognisable by courts of civil or criminal jurisdiction which may arise within the districts concerning certain specified matters. Now, the question of whether bridges should be put over a water race acd what bridges is a question which could nob be determined in aDy suit or complaint co?nisable by any courb o? civil or criminal jurisdiction. The appeal, therefore, being from the decision of tho warden under part 1, section 286. prescribes that every »uch appeal shall be deemed to be an appeal on matter of facb. It is to be so deemed, though in fact it. may really bo an appeal in matter of law, and therefore the procedure which is prescribed by section 287 for an appeal on matter of fact is to be followed, and not the procedure prescribed by thab section on an appeal on matter of law. By section 257 the appeal on matter of facb is to ba by a re-hearing of the case in the District Court, and the same proceedings are to bo had thereon as if the case had been commenced in the original jurisdiction of the District Court. Where the appeal is on matter of law it is to be in the form of a special case. Here the appeal was brought and determined not as a matter of fact by way of re-hearing, but in the form of a special oase. The jurisdiction ot the District Courb on the

I hearing of appeals is, of course, limited by the terms of the statute, and the terms of tho statute must be strictly complied with. If they are cot, there is an excess of jurisdiction which must go. ■ That is the case here. Then it is suggested by section 292 that tha proceedings are now in the Warden* Courfr, and that there is therefore nothing to prohibit in the Distriot Court. Cosls, however, were given against the present complainant ia the District; Court. Looking at the last words of eubsection 2 of section 292, it is, I think, clear thatl these costs, at anyrate, are not enforoible by the Warden* Court. By the last words of thafc subjection the warden may proceed to enforce the decision as so varied in the same manner as if it had been the original decision, and no such appeal had been brought. If no appeal, had been brought thero would have been no question of any costs of appeal. By section 290 the District Court has power to make an order for costs. That order seems to me to heenforcible by the District Court, looking at the last words I of subsection 2 of section 292, and by the DisCourb only. That conclusion is strengthened ! by the fact that the appellant to the District Court has to lodge in the District Courb a sum by way ef security of the costs of the hearing lot the appeal in that court. If the appellant; is ! unsuccessful, the District Court makes an order ! for costs against him. It is obvious that j ifc is to the District Court, and to tho District Conrt only, that the respondont rnusb go to get his oosts, because the Bum deposited to meet them is in the hands of the District! Caurt. The defect of jurisdiction being apparent on the faca of the proceedings, the applicant is entitled to prohibition as of right. This court has no discretion to refuse it. As to coats, they are not asked for in the summons, and the uniform practice here has been that ia motions and summonsee, if costs are not asked for, unless they are motions in equity suits, costs are not supposed to be wanted, and- are therefore not given. That beinß tho practice, I can hardly depart from it until either a now rule io mr.de or the judges sgree it is undesirable the practice is followed, and intimate that to the profession, as a guide to action in the future. Rule absolute granted, withoivj costs. - ' The court rose afc 4.15 p.m.