SUPREME COURT.

Otago Witness, Issue 2318, 4 August 1898, Page 20

SUPREME COURT.

IN BAKCO.

MoxDAr, August 1. (Before His Honor Mr Justice Pennefather.)

COfSTON V. M'KENZIE AND ANOTHER.

Motion for writ of prohibition,

Mr Hosking appeared on behalf of the plaintiff, "William Couston, ironmonger, of Dunedin, and Mr Solomon and Mi Him on behalf of the defendants, Donald M'Kenzio, jun., farmer, of Waikaka, and Robert Samuel Hawkins, a warden of the Warden's Couit for the district of the Otago Goldfields.

The fotaloment of claim, made pur&uant to rule 455 of tho Code of Civil Procedure, showed that John Turnbull, farmer, of Waikaka, is the holder of a leaso under section 136 of " The Land Act, 1885," dated the 10th August, 1887, in respect of section 45, block XIV, Chatton district, for a term commencing from the date of the lease and expiring on the 30th June first ensuing after the expiration of 30 years, and renewable on the conditions prescribed by "The Land Act, 1885," and the plaintiff is the mortgagee of all Turnbull's estate and interest in tho land. On the Ist June, 1898, the defendant M'Kenzic applied to the Warden at Waikaia for a special claim for gold mining purposes under the provisions of "The Mining- Act, 1891," of a portion of the land comprised in the lease. The sth July was appointed for the hearing of the application, and tho plaintiff lodged with the. warden a notice of his objections to the grant of the application upon tho ground that the land so applied for was held under perpetual lease, and was mortgaged to him by Turnbull. On the day appointed for the hearing the plaintiff by his solicitor appeared before the warden, and supported his objections by urging that the waulen had no jurisdiction to grant, the application on the ground that the existence of the lease excluded the lands comprised in it from the jurisdiction or power of the warden to grant such lands or any part thereof as a special claim, ,b_ut the warden o/vei ruled the objections and adjourned the further hearing to the 2nd August in order that, the survey of (ha lands might be proceeded with in the meantime. The plaintiff now applied to have t!i« warden prohibited from proceeding further with the application.

Mr Ilosking explained that under " Th« Land A( i, 1882," perpetual leases, were first instituted, and that act, was repeated and incorpoialed in "The Land Act, 1885." The definition of "Crown lands" in section 4 of "The Mines Ac!, 1891," did not refer to pmpeUuil leases, but specially refeired to loa^c or licences for pastoral or agricultural puipo'cs. and said that the expression "except where- specially otherwise provided does not. include any land licensed or leased under any act relating lo Crown lands with tho light of acquiiing tho fee simple Iheieof." Undor tho legi&lation relating to perpetual leases, there was no right lo acquire tho foe simple lo any land within a goldfield. An application was made lo the warden some little lime ago in respect to the same piece of land ps was now in question, and a special cape was then stated for the Supreme Court as to whether n perpetual lease came within the definition of Crown lands. It appeared then that under "The Land Act, 1888," the perpetual leaseholder had the right to exchange his lease for the holding known as the deferred payment, and a deferred payment holder had a right lo acquire a fee ample ; and it was .argued that a perpetual lease came within tho exception of Crown lands in the section of the act of 1891, Ib was then as-

sumed that as the lease in this case was granted before the mining district, in which it was situated, was proclaimed, the Mines Act did not operate, but it had turned out that that assumption was wrong, and application was again made to the warden, who held that as there was an erroneous fact ,in the special case which had been slated for the opinion of the Supreme Court he was not bound by the derision of Mr Justice Williams in that case. The point now was whether the warden bad jurisdiction to grant a special claim over this perpetual leose land seeing that tho lease was not, as had previously beon supposed, granted before the Mining Act was brought into operation in tho district, but after the Mining Act had been brought into operation. Learned counsel contended that it was absolutely inconsistent with the spirit of the act, and with all the legislation on tho subject that the warden should, withuut compensation to the holder of the perpetual leape and (ho believed) without notice to him, be at liberty lo grant the land by way of special claim. There were provisions for the resumption of perpetual loaves where land was found lo be auriferous, -xnd Iho&e provisions plainly shoved that it was not intended that perpetual leases should be dealt with by the warden unless by way of lcsiimption. When there was resumption compensation followed as a matter of course, but without resumption it was not clear that tho perpetual leaseholder got compensation. Counsel exhaustively reviewed the legislation bearing upon the question.

At tho conclusion of Mr llosking's argument, at 4.40 p.m.. it was arranged that the case should be adjourned until the 9th inst., after Chambeis. It had been agreed between the parlies that pending a decision of the court on the question the proceedings in the Warden's. Court should be stayed, and a telegram to that effect was despatched to the warden by the counsel and solicitors engaged in the case.