WARDEN'S COURT, ALEXANDRA.

Otago Witness, Issue 2263, 15 July 1897, Page 25

WARDEN'S COURT, ALEXANDRA.

Monday, July 12. (Before Mr S. E. M'Carthy, Warden.) THE MOLYNEUX HYDRAULIC AND ELEVATING COMPANY (LIMITED) V. OLAF MAGNUS AND OTHERS. Claim of £100, on account of alleged deprivation by the defendants of the complainants' lateral support for their special <-laini. Mr Robert Gilkison for the complainant company, and Mr Malcolm Macdonald for the defendants. In this previously- heard case the Warden now delivered judgment : — This is a case wherein the complainant company alleges that it is the holder of a special claim license in respect of section 1, block XXI. Town of Alexandra, granted pursuant to " The Mining Act, 1891"; that the defendants, being the

owners of a steam dredge, have by means of such dredge unlawfully encroached upon the beforementioned tection 1, hava worked a considerable part thereof, and have extracted the gold from the part so worked away. i As an alternative cause of action the complainant company filed an amended statement | of claim, alleging that the defendants by means of the before-mentioned dredge have worked so close to the complainant company's special claim as to deprive it of its lateral support, cause a great part thereof to fall down into the Molyncux Rivar, whereby the gold therein contained became lost to the complainant company, and has been obtained by the defendants. At the hearing the company solely relied on their amended statement of claim. The facts are these : The coni • plainant company is the holder of a special claim license, originally granted on the 11th October, 1890, under the provisions of " The Mining Act, 1886." This license was surrendered pursuant to the proviiions of section 187 of "The Mining Act, 1891," and a similar title issued in lieu thereof, with priority as from the date of the original license. The land the subject of theße two licenses (section 1, block XXI, Town of Alexandra) originally skirted alons the north-eastern bank of the Molyneux River, but did not actually abut i theraon. The defendants are the licensees named in a special claim license dated the Ist February, 1895, issued pursuant to " The Mining Act, 1891," in respect of section 21, block I, Fraser district. This latter section includes a part of the south-eastern bank of the Clutha River as well as the river bed lying to the south of section 1. The action of the river had, before the commencement of the dredging operations of the defendants hereafter referred to, cirried away portion of its north-eastern bank, whereby the \ southern boundary of section 1 became also a '■ boundary of the river. The dffendants, bafore the commencement of their dredging operations, had pegged out and applied for a new special claim, including (inter alia.) section 21 and a spare piece of river bed between section 1 and the latter section. ' This application is still pending, and states that the applicants will surrender the license for section 21 as soon as the application i 3 ' granted. It has been intimated by the warden that the application will be granted subject to certain conditions not yet determined on. The ! defendants, during the time mentioned in the particulars of complaint, worked their dredge within the limits of the land at present under application, though not always within section El, at certain points distant from 2ft to 6ft from the southern boundary of the complainant company's special claim. This working of the dredge deepened the bed of the river. On tho southern bank of the river there have been thrown out from claims on that bank not owned or controlled by the defendants two long strips of tailings extending some distance into the river. Ihe-re strips have had the effect of directing t^e current of the river more against that part of the northern bank on which is situate section I— the complainant company's special claim— than was formerly the case. This fact, coupled with the deepening before alluded to, as well as the vibration of the dredge, has brought into the river a portion of the southern boundary of Eection 1. Although each of the above causes has contributed to this result, there can be no doubt that had it not been for the dredging operations of the defendants the amount of soil displaced would have been infinitesimal. However, the soil so Displaced fell into the bed of the river well within the limits of the complainant company's special claim ; and looking at the fall of the river and the specific gravity of gold, no appreciable amount of either the auriferous gravel or the gold therein contained have escaped beyond the limits of the c impany's claim. Any gold which might have escaped (and there is no proof that any did escape) could not have been saved by any known appliances. Further than this it has been abundantly proved that the surface soil of the company's special claim, which is of a loose sandy nature, contains little, if any, gold, which is chiefly contained in a layer of hard gravel cement upon which the current of the river could have little or no effect. The complainant's special claim was originally worked by means of hydraulic sluicing; but at the time of the happening of the events on which the complainant company bases its right of action, it had abandoned sluicing operations and was engaged in building a dredge to work its special claim. The building of this dredge has since been completed, and before the heaiing of the case had been concluded it was at work. To get at the auriferous gravel which lies on what is called the "bottom" the complainant company will either have to dredge or sluice away the sandy soil which lie 3on the surface. The defendants' operations, so far from hindering or impeding those of the complainant company, will, on the contrary, materially assist the latter in the work it will have to undertake before it can reach the auriferous gravel. The fact must not be lost sight of that the strip of ground which has fallen into the river within the limits of the complainant company's special claim was not, at the time of the defendants' dredging operations, directly adjacent to any land whatever. That strip was itself the north-eastern bank 'of the river. The sole ground of complaint, then, on which the company can base its alleged right of action against the defendants is that, from the causes before mentioned, a strip of land forming part of the complainant company's special claim has fallen into the river within the limits of that claim, and that thereby the complainants have lost no gold which they could have hoped to win, and have not been, and_ cannot in the future be, in any way impeded in any work they may choose to undertake for the purpose of winning the gold. In short, the company is. .driven to base its right of action on a bare subsidence of a portion of its land unaccompanied by any infringement of any of the rights to which, it is entitled under its license. Can, then, a bare interference with the lateral support of any special claim held under " The Mining Act, 1891," unaccompanied by any such infringement, give rise to a right of action for damages and a claim for an injunction. The rights of the company nnder ita license are defined by section 77. Tnat section gives all special claim licenses, subject to the provisions of the tct, and during the currency of the several terms created by their respective licenses, "an indefeasible right to all gold withiu the boundaries of the land comprised within the license, and an indefeasible and exclusive rightto dig and mine forgold therein and thereon, and dispose of the same ; to erect | machinery on such land, and to construct works j connected therewith, and to do all lawful acts j incident or conducive to the carrying out of i these objects." Now with regard to this right of support from adjacent laud, it is laid down in Goddard on Easements (page 57, j fifth edition) that "the law annexes to the owner- ! ship of land a natural right that the landowner j shall be entitled to sufficient subjacent and ' adjacent support for his ground to keep it in its nitural condition and position." So, also, at page 59 of the same work, it is further laid down that | "the ri^ht to support is nob a right to a particular means of support ; as, for instance, if support has always been received from subjacent coal, that the "coal or a certain portion sufficient to sustain the super-incumbent weight of the soil shall never be removed, but it is a right that the ordinary euioyment of land shall not be interrupted, so that until the eojoymeut of the surface is disturbed the owner has no right to complain of the removal of minerals." A number of cases are referred to in support of these propositions, and in all of them the constant element is that the person who has succeeded in his action has had invaded some right of user or some method of enjoyment incident either to the ownership or even the bare occupation of land These casps have been decided as between (a) ordinary landholders, (6) miners and ordinary landholders, (c) miners and miners. And even in the case greatly relied on by counsel for the complainant (The Great KxtendeJ Sluicing Company v. Hales, " Macassey's Reports," 896), the plaintiff company, and the defendants were respectively holders of mining claims under " The Goldflelds Act, 1866," and the latter had mined so close to the claim of the former as to cause a large portion thereof to fall in on defendants' claim. The defendants had thus invaded the exclmive right to mine held by the plaintiff company under the act just cited. It is further to be borne in mind j that by the very terms of the license held_ by the complainant company in the present case it Is not contemplated that the surface of the land will continue in its natural state. The veiy operations I which both the company and the defendants propose to carry out will remove the whole, or nearly

the whole, of the surface soil from their respective claims. In so far then as special claims held under the act of 1891 are concerned, actions founded on any alleged invasion of the right to lateral support, muet from the very nature of things and by analogy to the English authorities be confined to those cases where any such invasion has resulted, or might result, in any deprivation, however slight, of the rights conferred on licensees by the statute with probable limitations wherever machinery hat been erected by either of the parties to the action. The initial test of liability in every case is not whether the land has been deprived of its lateral support, but whether there has been any invasion of the statutory rights of the licensee. Cases can easily be imagined, as for example, of underground workings, where the maintenance of lateral support would bs all important, but to decide in every case of subsidence of lands held under special claim licenses, unaccompanied by any infringement of the statutory rights of the iicenaee, that an action would lie, would be not only to aim a deadly blow at Ihe mining industry by fostering fruitless litigation, but to depart from the analogies suggested by the English authorities. Inasmuch then as any subsidence that has taken place owing to the operations of the defendants' dredge has been unaccompanied by any invasion of the statutory rights of the complainant company under their license, judgment 3 must be recorded for the defendants. Judgment accordingly, with £10 10s counsels' fee, disbursements, and witnesses expenses.