WARDEN'S COURT, CROMWELL. April, 1900.

Otago Witness, Issue 2409, 3 May 1900, Page 25

WARDEN'S COURT, CROMWELL. April, 1900.

(Before Mr Warden M'Carthy.) - '/""WILI.IAII TAYLOR V. JJEBEMIAH o'CONNSLB. Suit ior cancellation of defendant's license ior a special river claim on the ground that its grant was obtained by fraudulent misrepresentations made to the warden. • By consent of the parties, an application (No. 672/99) by the plaintiff for a special dredging claim objected to by the defendant and one William Poppelwell, and an application (No. 475/99)_by •the said William Poppelwell, objected to by ■the plaintiff, w^re heard together with the suit. Mr Moffat (of Invercargill) for the plaintiff, Mr Shortland (of Cromwell) for ihe defendant, and Mr Robert Gilkison (of Clyde) for the applicant, "William Poppelwell. The suit,' s vh.'e two applications, as well as the objections to the latter, were heard at Cromwell at the March 'sittings of the court, when the Warden reserved judgment, which was now given in the following terms: — ~ The plaintiff on the 17 Qi day of April, 18S9,

made application for a prospecting license to authorise him to search for gold in respect of 100 acre's of Crown lands in the Nevis survey district. The land applied for is described as being near Whitfcon's Creek and Nevis River, and the plan attached to the notice of application does not disclose that the land ap-

plied for will include Whitton's Creek. The application came on for hearing at Cromwell on the 4th May, 1899, when the Warden inti- • xuatscl, in accordance- with previous rulings, that lie would 'not grant- prospecting licerrses authorising the^ search for gold in close proximity to gold-mining claims m full working, but ad- . jjourned the application tfor a month to allow of the 'land being applied ior as a special dredging claim. The plaintiff did not make any application for a special dredging claim until

Ihe sih December, 1899, his , application for , a prospecting license having' on various preiiexts been adjourned from month to month, lileantime — namely, on the 19th October, '1899 — -the defendant procureel the grant to himself of -a 19-acre special rivei claim in respect of part of f-the 'lands affected by the plaintiff's application for a prospecting license. The usual questions were put by the Warden to "the defendant's counsel before granting the defendant's application. These questions are: (1) Have you complied with all the provisions -of -the Mining Act and legulations. (2) Are the statements contained in 3'our notice of application triie? (3) Will the granting of the application interfere with the rights of any other person? To questions 1 and 2 there was re-

"turned the answer " Yes," and to question 3 ths answer " No." Both defendant and his counsel well knew at the time of the defendant's application being granted that that application referred to a part of the land the plaintiff -had undei application, but say that as the latter had never marked out the land

"the subject of his application, they were of the opinion the plaintiff had no rights in connec- ' iion with it. Ther> on the 26th September, V 1899, the applicant, William Poppelwell, applied for 30 acres of land forming part of ihe land applied for by the plaintiff under its prospecting license application. This application "was heard on the same day as the defendants — namely, the 19th Octobei, 1893. The preliminary hearing was then passed, and the land ordered to be surveyed. The survey was* completed by the Bth March, and the application •came on for final hearing at the March sitting of the court. ' The plaintiff filed his objection on the sth March. The applicant, Poppelwell, like the defendant," alleges dhe lan<3 applied for by the plaintiff -for. prospecting purposes ■was_ never marked -out; but, unlike the de-fendant,,denies-all knowledge of the plaintiff's application. There is a conflict of testimony "on the question of marking out the land, the "subject 'of the' prospecting license ■ application. Several witnesses said they had never been «ble to find 'traces of Taylor's pegs, whilst on behalf of the plaintiff it is deposed that four pegs were erected and trenches cut round these

iour pegs; but, assuming the chainage of the plaintiff's boundaiy to be correct — and there is nothing *to show it is incorrect, — the number of p"egs requisite would be 20; and I cannot say where there is such a discrepancy between -the number of pegs prescribed ior in the regulations and those actually used -by the plaintiff, there has been a substantiai compliance with the provisions as to marking out within the meaning of subsection 13 of section 136 of

"" The Mining Act, 1893." However, the appli--cation was pending, and its priority is, by subsection 5 of the tame section, retained until it "is finally disposed 'of by being granted, l'efused, or, by lenvr- *bf the Warden, withdrawn " ; whilst subsection 13 clearly reposes in the Warden,'"and not in any rival applicant or his counsel, the duty of deciding all ques- ■ tions relating to marking out; and it is clear none, of the events provided for in subsection 5-. had happened at the time of the grant to the defendant; whilst it is further clear the plaintiff, notwithstanding jhe insufficiency of his marking out, "was entitled to a hearing of his application. Whilst, therefore, the plaintiff's application was still pending, thfe defendant . and hi 3 counsel not only intentionally concealed from the Warden the fact that the land, the subject of the defendant's application, was alleady under application by the plaintiff, but the defendant's counsel returned an untrue answer to one of the questions put to him by the Warden regarding his client's applica-

•fcion.; and in nry ..opinion this is a fraudulent imisr-epresentation within the. meaning of subsection 1 of section 147. No doubt the plaintiff himself had not substantially complied

with the provisions as to jmarkmg out his pros-

pecting area, smd is not, on that account, en■titled to a grant, yet it is of the highest im-

portance that applicants and those representing them before the -Warden should in all dealings with that official observe towards him

the highest faith. For these reasons the defendant's license referred to in the statement of claim will be ordered to be delivered up for cancellation on the' ground that the grant thereof was obtained by fraudulent misrepresentation. Taylor's application for a special dredging claim will be refused. Coming now to Pocpelwell's application, although it is within tfie area applied foi by the plaintiff, yet the latter had so insufficiently marked out the land, the subject of his application, that the surveyor entrusted with the survey of Poppelwell's land was vinable to report any claims to prior occupancy of the ground, and it does not appear that Poppelwell was aware of the plaintiff's, application. Poppehvell's application will' therefore be granted, and Uie plaintiff will be ordered to pay him his costs of and incidental to the filing and hearing of his objection, whilst the defendant will be ordered to pay to the plaintiff his costs of suit.