THE MINING REGULATIONS.

Otago Witness, Issue 2371, 10 August 1899, Page 23

THE MINING REGULATIONS.

i THE DEEP STREAM SLUICING COM- ! PANT. • AN APPLICATION FOR FORFEITURE. The case Samuel Frederick Gay (Alexandra? v. the Deep Stream Amalgamated Hydraulic Sluicing Company (Limited) engaged the attention of Mr TZ. H. Carew at the Warden's Court yesterday. Mr W. C. MacGregor appeared for the complainant, and Mr F. R. Chapman for the company. The statement of claim set forth that the plaintiff was the holder of a miner's right issued in the mining district of Otago. The defendant company -was the holder of three special claims on the Deep Stream, for which licenses had been granted as follows: — No. 1, dated July 3, 1896, originally granted to Thomas Merritt Wilkinson; No. 2, dated December 8, 1896, originally granted to John Wm. Roberts; No. 3, dated December, 1896, originally granted to George Morrison. The three special claims so held by the defendant company had become and were liable to forfeiture on the following grounds (inter alia) : — (1) By reason of facts which amounted' to breaches of section 147, of "The Mining Act, 1898," and the corresponding poition of " The Mining Act, 1891 " ; (2) By reason of the defendant company failing to comply with the terms of the grants of the said special claims, the three special claims had become and were abandoned in fact, and also by operation of law. Operations had not been carried on in the claims in connection therewith with reasonable diligence. The defendant company had not at all times during Hie continuance of the licenses employed in oi about the claims the number of men^pre- , scribed by the mining acts and regulations:' wherefore the plaintiff claimed as' follows: — (1) That the three" special claims be decreed to ba forfeited and the licenses therefor cancelled; (2) or (in the alternative) thafc^a certificate of abandonment be granted in respect of each of

the claims ; (3) that the plaintiff be deemed to f be the first applicant in respect of each of- the j three special claims, and be put in possession j of the right forfeited in each case; (4) the costs ■, of this suit; (5) such further or other relief as j to the court may seem fit. j Mr MacGregor, in opening the case for the \ complainant, said since he had come into court ; ho had been told that these claims were subject to protection. He searched the title of the claims, and the claims appeared to be unprotected. He, however, now found that they had been protected for six months, from February 3 last, which entirely altered the aspect of affairs. His client; ' Mr Gay, was present, and was prepared to give evidence on the original application*, but as regarded the protection he should ask his Worship to adjourn the case so that he ' might get instructions about it. He was get- , ting his instructions from Alexandra, and Mr I Gay's partner, who knew more about the matter j than Mr Gay, was there, having been on the j ground several times, while Mr Gay had only ■ been on it once. ) Mr Carew: You ought to be prepared to go i on with your caee. j Mr MacGregor: I am quite prepared to go j on with the case as originally launched, but I > have been misinformed as to what the posi- { tion of the case is, and the court has discretion ■ lo adjourn a case like that. Mr Chapman said he had never heard oi such %a application being made in that or any other court. His friend, or his client, launched an > action in which he sought to take away property of very great value, and 'hen all he could say when he came into court was that he was not aware of the nature of tht evidence against -him. It was not as if the ctmpany had anything .concealed. The company had had no ' communication whatever wth his learned •friend. He (Mr Chapman) thought his learned friend should state whether he asked the officer in charge of the court to show him all the documents relating to the claim, and also whether he asked the specific question whether there was any protection. He submitted that a flimsier ground for asking for adjournment was never heard of. j Mr MacGregor said his client stated that no notice of protection was posted up. Mr Chapman : There is no provision for keeping it up after protection is granted. i Mr Carew : There used to be. Mr MacGregor pointed out that regulation 209 provided that notice of protection should at all times be maintained. Mr Carew: It is a question for you to con- • aider whether that will help you. Mr MacGregor said he was not prepared to j give evidence except upon the original appli- j ■ cation. He assumed the claim was not pro- ; tected. He submitted that protection was ob- , tamed by absolute misrepresentation. j Mr Carew: Is that something you can prove? [ Mr MacGregor: Oh, no. Mr Carew: That would be a new case entirely. Mr MacGregor: That is exactly what I am • pointing out. We have to meet a new. case. Mr Carew. You have not to meet a new case. You come here bringing a new case. j Mr MacGregor: I say these three claims ! have been unworked ever since the claims were granted. The othei side say they were protected. I say they were not protected. The ( protection was only obtained by fraud. The , question will be a conflict of evidence, and I , have only got my client here who was on the ground once. j Mr Chapman-: When was that? . Mr MacGregor : On the 3rd of July. ! Mr Chapman asked the name of the witness Mr MacGregor proposed to call. | Mr MacGreg6r gave the name of Mr Henry j Byrnes, . of Alexandra. Counsel proceeded to say that his client maintained that the claim had never been occupied, and he , could prove fraud and misrepresentation. J Mr Carew. Why not have the evidence here? j Mr MacGregor said his client was unaware , •what he had to meet. j Mr Carew: You lay a complaint against the | company, and you ought to be prepared to prove that. . Mr MacGregor: If you had been made aware of the facts you would never have granted protection to these claims at all. If you like wo can go on with it now, but it would be more convenient to thresh it out in one day. Mr Carew did not think any sufficient ground lor an adjournment had been given. Mr MacGregor said he would go on with his case then. The facts of the case he was instructed were as follows: — The Deep Stream Amalgamated Hydraulic Sluicing Company (Limited) was a company which was formed some three years ago for mining purposes. Be- . fore its incorporation special claims were granted to T. M. Wilkinson, John Wm. Roberts, George Morrison, and John Peterson. The three' first-mentioned were all duly granted and were transferred to the Deep Stream Amalgamated Hydraulic Sluicing Company (Limited) on the 14th Av>ril, 1897. The company was formed principally to take over and work these four special claims in the Deep Stream district. He was not attacking Peterson's claim, : because the company was actually working that, | but he was instructed that so far as the two j . hi{rh er claims were concerned — Morrison's and j Roberts's — absolutely no work had been done, j So far as Wilkinson's claim was concerned, not , having made a survey, his client rould not say j •whether any work had actually been done or i not, but the company were working up to it — to the boundary between it and Peterson's. Now the company seemed to have assumed throughout that the proper or possibly the only way of working these claims was the way the original holders of the claims designed — namely, by hydraulic sluicing, but that was an entire mistake. The ground, and especially the upper claims, was eminently suitable for dredging, but could be worked much more cheaply by a dredge or dredges than the somewhat expensive method the comnany had adopted. Mr Carew: Now that the works have been carried as far as they have? Mr Chapman asked why the company, after spending £8000 on a race, should spend something on dredges. Mr MacGregor replied that it would be far more profitable so far as the mining community was concerned to allow the ground to be worked by, say, half-a-dozen dredges than that it should be worked by the company with a line of pipes and three or four men. Mr Carew. What would that cost— £2s,ooo or £30,000? Mr MacGregor; It might. There is a dredge going on below this claim directly. That is the position: that the company is working one claim and is shepherding three claims, and has been doing so ever since these claims were granted. Counsel went on to say nothing was more clear than that the essential consideration for the grant of these claims was an agreement by the persons who took them up to work them. The three claims, which were granted so Jong ago as July and December, 1896, still remained absolutely unworked, and- now they were told that these claims were protected. Apart from the general law on the subject the terms of the applications showed that the men. who took up the claims took them up on the distinct understanding that they were to work them. The licensees were also to carry on mining operations in an efficient and workmanlike manner, and to employ one man to every two acres or factional -part thereof. The present was an exceptional case in this respect : that in most cases where thero was an application for forfeiture of a claim for not working there had been BOm» nxetenc* of working at some time

or other, but in the present case apparently there was nothing of the sort. There had never been any work dorife upon thede three claims. It simply meant that four miles of this river was absolutely locked up, because the company had chosen to take a water race to a licensed" holding and freehold land at the foot of that four miles. Such a state of things was absolutely intolerable and could not be permitted to continue. Then he (counsel) became aware for the first time, that day that protection had been granted. He could not conceive upon what ground it had been granted if the facts had been set forth. He found that a deliberate and successful attempt had been made to hoodwink the court into the belief that work was going on on these claims, whereas, as a matter of fact, no work had ever been done upon them. Mr Carew: Is not work done in connection with the claim work done by the claim ? Mr MacGregor said that was not what was stated in the application for protection. He noticed that W. R. Cook was the secretary of the Deep Stream Amalgamated . Hydraulic Sluicing Company, and had actually his name filled in as the person who was going to obtain the protection certificate. Mr Cook's name, however, was struck out and someone stuck on a rubber stamp in its place. No director of the company could have put his name to the application, which stated that the particulars contained in it were true in all respects. The application, however, was misleading, and it was an abuse of the mining law to make such an application. Mr Carew : I think the application stood over for some time, if I mistake not. Some new regulations came into force at the time protection was granted. Mr MacGregor: This application required to be posted on the claim, I take it. Mr Cnrew: Oh, yes. Mr MacGregor proceeded to say that if protection was granted by misrepresentation it was voidable, and would be set aside and a proper order made in terms of regulation 222, which provided that the Warden might cancel the certificate or license and make such order as might be just or equitable. Mr Chapman: Do you suggest that you are peeking that now? Mr Carew : Must you not bring a suit for that purpesp'' Mr MacGregor: I don't think so. I say that both the original license and the protection have been obtained by misrepresentation. Mr Chapman : That is not the action, and, besides, the licenses were obtained by puvate persons, and this company has purchased them. Mr Carew : There is some provision in regard to that in the new act — section 148. Mr Chapman said there was one thing not correct in the_ representation that had been made. The capital stated was under the mark. The company had spent a great deal more. Mr MacGregor went on to say that what he contended was that the company had done no work at all in the claims he was attacking. It was a scheme by which to get an enormous extent of river locked up, and it wa3 totally opposed to both the letter and spirit of the Mining Act. The act of 1891 was the act under which he assumed his Worship v, ould have to upset this matter. The sections under which special claims such as these were granted were sections 66 and 67. Special claims were only granted under extraordinary circumstances. Mr Carew : lam not going into the question of whether the claims were granted properly or not. y Mr MacGre?or said he was not asking his Worship to do -that. He was saying apart from the general law relating to the working of claims, there were special conditions upon which claims must be granted, and that those : conditions mus; be strictly complied with. Under section 66 a claim must be held, ocouI pied, and worked. These claims had undoubtedly been held, but they had neither been occupied nor worked. Then section 67 said if I it should bo proved to the satisfaction of the j court that any special claim granted had rei mamed unworked for the period specified in j that respect the Warden might declare the same to be forfeited, or might substitute a monetary fine in lieu of forfeiture. The result of forfeiture, as declared by section 142, was to render the license void, and the licensee ceased to have any interest in the land. After referring to other sections of the act bearing on the case, Mr MacGregor proceeded to say until the act of 1898 came into force it was obvious that these four claims could not be amalgamated at all. Mr Carew said he was quite sure he was not misled at the time with regard to this matter. He knew the history of the claims. They were rival claims and wanted to be amalgamated. Mr MacGregor said so far as he could gather from the documents the parties must have I had twelve months' protection before the six ; months' protection was applied for. Mr Chapman : That was in the case of the previous owners. Twelve months had elapsed since the previous protection. Mr MacGregor submitted in regard to this question that the cause or forfeiture arose long before the period of protection, and continued up to the present day. There had also been, he contended, a continuing breach of duty on j the part of the company, aud his client was enj titled to take advantage of such a breach. CounI sel proceeded to say that his learned friend | had been good enough to supply him with a i copy of the company's annual report, from j which it was gathered that the company had • obtained a large quantity of gold, and paid j away a large sum in dividends. The company was in a good financial condition, and therefore it could not be urged in their favour that it was through a want of money that they failed to work the other claims — leaving three out of four claims unworked. As regarded the certificate of protection he had been very much taken by surprise when he learned such a certificate was in existence, but he would refer to a Victorian case bearing on the point, summed up in Armstrong's Mining Law, page 26. Having quoted the case, Mr MacGregor said he proposed to prove that this certificate of protection was obtained by false pretences. His Worship: Should you not have made that a part of your cause of action ? Mr MacGregor: I did not know of it. His Worship : But you ought to have known it. If you attack a man you should state the grounds upon which you base your attacks. Mr MacGregor : This matter only came under my notice this morning. Mr Chapman: You could havfe obtained the information by making a search for it in the Warden's Court. Mr MacGregor said lie did not make a search. He went to the court and asked for the register. He was given a book which he understood to be the register, and it did not contain any notification of protection. His Worship observed that Mr MacGregor could not have expected to have found the information as to protection in the book referred to..

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Mr Chapman observed that he supposed Mr MacGregor had gone there with a remote hope of finding that the rent had not been paid, or something like that. Mr MacGregor denied that he had done any such thing. He had gone there in the interests of his client to examine the title of the company to the claims which they were not working in accordance with the act,and he hoped to prove to the court that they were not so worked if he were not interrupted by his learned friend. When he came to the court to search the title the clerk had given him a book, and he took it for granted that it was 'the register. His Worship: I understand then that you .came to the court to ascertain if a protection had been issxied. Mr MacGregor: Oh, no. His Worship : Well it was your own fault then, and you should not endeavour to throw blame on the clerk of the court. Mr MacGregor: I don't know whose fault it was. I came for information as to the titles and was shown this book. There was nothing to show that protection had been issued. His Worship: That id, you did not look at the proper book. Mr MacGregor : That may or may not be. His Worship : Don't waste any more time, Mr MacGregor. Please proceed with the'case. Mr MacGregor remarked that he did not wish to waste time, and time would not be wasted were it not that he was subjected to interruption. He then went on to say that the question of protection vitally affected the state of the title. Apparently it was good if protection had. been granted. He had no reason to believe, till after 11 o'clock that morning, that protection had been jgranted. He was now met with the ! statement that protection had been granted. It ! appeared on the fact of it that this protection had been obtained under false pretences, and an opportunity should be given him of producing evidence to prove that "fact. His Worship: I have already decided the question of adjournment. Mr MacGregor: Before your Worship heard my argument. His Worship : I decided hours ago that point. Mr MacGregor : Nevertheless, I propose to go on and do my duty to my client. After your Worship has heard a case which has a bearing His Worship: On the question of adjournment ' Mr MacGregor • On the question of the case. I wish to show that this certificate has been obtained by false pretences. I say it is impossible to do so on the evidence I have here to-day, and it is but just that we should have a reasonable opportunity of convincing the court that what we say is true. His Worship.: I have settled the question of adjournment once and for all. I am not going into that matter again. Mr MacGregor: Well, I will ask your Worship to listen to my argument. His Worship: No. Not on the question of the adjournment. Mr MacGregor: Well I will simply decline to proceed. I will sit down. Mr MacGregor then took his seat. Mr Chapman (after a pause) : I will ask your Worship to dispose of the case. His Worship remarked that he would give Mr MacGregor an opportunity to consider what he would do. Mr MacGregor: Your Worship -said you would not listen to my argument. His Worship : Some hours ago I decided the matter of adjournment. Mr MacGregor: I say your Worship is not doing right, and in the interests of my client I j insist on being heard. If you will not hear me t I will sit down. , I His Worship : Do you wish to call any witnesses ? Mr MacGregor was understood to intimate that he had no occasion to call witnesses at that stage. His Worship (to Mr Chapman): Have jou anything to say, Mr Chapman? Mr Chapman: I will ask your Worship to dispose of the action. There is no case to answer. His Worship: Plaintiff is non-suited. Are there any costs? The Clerk intimated that costs amounted to £o ss. His Worship : Plaintiff non-suited with £5 53 costs. Mr MacGregor: Will your Worship take a note of my objection that you refuted to hear my argument His Worship: On the question of the adjournment ? Mr MncGregor: I did not say on what question. What I ask your Worship) is, have you taken a note of the fact" that' you refused to hear ray argument? His Worship : The case is closed, Mr MacGregor. At a subsquent stage of the court proceedings, Mr MacGregor incidentally mentioned that it was his intention to appeal.