SUPREME COURT.

Otago Witness, Issue 2683, 16 August 1905, Page 26

SUPREME COURT.

IN BANCO. Wednesday, August 9.

(Before his Honor Mt Justice Williams. ) ZWING V THE SCA.NDIMAVI&.K 'WA.TER EACE

COMPACT.

This was an appeal from the decision of Warden Cruickshank iv granting a certificate »f abandonment (to issue November 1, 1904) in the matte of an application made by the Scandinavian Water Race Company for a special claim and for a certificate of abandonment of tbs licensed holding held by John Ewing, o! St. Bathans, mine-owner, under license dated October 13, 1896, to which Ewing via.3 an objector. "" 'Mr Hosking and Mt .. Hutton (Clyde) appeared for the appellant, John Ewing, and' Mr Solomon and Mr Cutten (Naseby) appeared for thja Scandinavian Oojnpany. The- notice of 'appeal set --ut that the warden 3iad "no power to grant the certificate of s&bandoivmioni;, inasmuch, aa: The objector's licensed holding was held subject to the provisions of " The Mining Act, 1891," and was therefore not subject to the provisions of section 151 of the Mining Act of 1898 relating to the abandonment oi mining privileges by operation of law, nor liable to bs declared *ba.ndoi:-ed thereunder. There waa no provision in the act of 1891 or its amendments enabling a certificate of abandonment to ba given in respect of a licensed holding for the reasons s«t forth in the warden's decision. The fact of the objector " pegging out " the ground and asking for a " certificate against himself " could not be held to authorise the granting of the certificate applied for by the applicants, inasmuch as it did not exist at the tim« the application was made, and the Bank of New Zealand was a registered »ortgagee of the said mining privilege, and •was not « party to the application, and did not consent thereto, and its title could not bs declared abandoned merely in consequence of tlt3 objector's y^aid application. Furthei, the objector's acftons in working the claim and defending at/heavy cost a suit by applicants for forfeiture negatived any suggestion of intentional abandonment arising out of objector's action or defaults. Mr Hosking said this was a case of appeal on a point of law. The^uiestion which arose, shortly put, waa whether a licensed holding granted under th© act of 1891 could be subject to a ofcrtificato of abandonment for non-pay-ment of rent for cue year. That was the substantial question of law that arose upon the appeal. - There was a subordinate question which would arise as to the effect of the application that was made by Ewing himss.f for a ceHificate of abandonment. Counsel said it would be noted that section 151 of the 1893 act found no corresponding provision in any earlier act. The only abandonment in the earlier act was abandonment in fact, and it cams to be a question of absolute disuse of ike mining jrivilege coupled with tks inteii-

tion of the holder. Abandonment by operation of law was an entirely new term introduced into tlie acts, and it would be noted that tlie abandonment under section 151 was one thai was absolute and was not like forfeiture, in respect to which the warde?i had discretion to inflict a fine. The question of whefchra a licensed holding should be abandoned by reason of non-payment of rent arose in relation to a title acquired under the 1891 act, and therefore the question of whether that privilege was to be abandoned oi not must bo determined \mder the act of 1891. Under the 1891 act holdings were destructible by twer sets of fact, one under the head of forfeiture and the other under the head of abandonment. Counsel traced the history of previous litigation in respect to the claim, and dealt with a section of the Mining Act of 1891 relating to forfeiture and abandonment. He' submitted there had been forfeiture, but the warden had the discretion of imposing a flue, but the parties on the other side adroitly proceeded xtnder the head of abandonment to avoid this difficulty. Proceedings were begun by the Scandinavian Company over two years ago, and they had kept Ewing practically in the courts ever since. The company claimed there had been absolute forfeiture because of noncompliance with the conditions as to working. The warden held the claim had been forfeited as it had not beeu worked for years. There was an appeal to the District Court, which upheld ilia warden's decision/ ancP'then an appeal to me Court cf Appeal, which reversed the decisions of the warden and of the District Court judge and imposed a fine in lieu of forfeiture. The question of whether the claim was forfeited or not had nothing to do with Ihe present case. The whole question was whether a certificate of abandonment could be issued in respect to a licensed holding because the rent had lapsed for 12 months. He submitted that to s.ay that a mining privilege granted under the 1891 act was deemed to be abandoned owing to non-payment of rent for a year was to affect an existing right. As to Ewing's pegging out the ground and himself putting in an application, it was certainly an ill-advised application; but he mo doubt thought that, there being two applications, the warden would give him the prior right (which he "id not), and if the abandonment proceeded on Ewing's application it only took effect from the date- of his application, and he was thus the first applicant. It was submitted, however, that Ewing's application did not give the warden jurisdiction to give a certificate of abandonment. Everything done by Ewing — his payment of large costs and fine of £100, his fighting his case for over two years, the fact that he was actually doing work on the claim prior to and right up to the time of the application now appealed against — negatived intentional abandonment. No court would, in viewing these facts, conclude there had been abandonment. He submitted the appeal should be upheld.

Mr Hutton, :n addressing the court, submitted the act of IS9B could not apply, as it imposed a new condition subsequent to Ewing's title which was precluded from being imposed by section 7 of the act. * Ifie relief of abandonment could not be given where the relief prescribed by the act was forfeiture, for forfeiture and abandonment implied distinct ideas. They were therefore thrown back on section 149 of the act of 1891, which only allowed abandonment in the case of actual desertion, and the applicant must prove actual desertion — that was to say, abandonment in fact, which had not been proved. Mr Solomon pointed out that the failure of appellant to pay the 12 months' rent was altogether subsequent to the other proceedings. The application m the original suit was for non-ussr of the claim antecedeit to a particular date. The non-payment of this rent %vas entirely subsequent to that date, and was dealt with by the warden on that basis. It was curious that the court should now be asked to arrive at a conclusion which was directly opposite to what Ewing himself deemed to be the position of affairs. On the hearing of the company's application Ewing certainly assumed that he was taking the proper proceedings m making an application himself. The only conclusion the court could arrive at was that Ewing iatentionaily put himself into that positidn in order to make a fresh start. He applied for a new title under the 1898 act, and two aspects of the question were now before the court. It could not be said to be a matter of inadvertence on the appellant's part that he did not pay this rent for 12 months, because his attention had been particularly drawn to the circumstances. As to the legal aspect of the question, Le agreed that the main question to be decided was, Did the provisions of s-scticn 150 of the 1898 act as to abandonment apply to a claim taken up under the 1891 act with the amendments of the 1895 act, and _in addition to that a substantial question to ue decided, assum-ing-the abandonment clauses of the 1898 act did not apply m the sense that a certificate of abandonment could not be granted, was there discretion for the warden to grant the claim to the applicants as in this case. He submitted that the act of 1898 was applicable to this claim, and that the abandonment clauses of the. 1898 act were applicable to a claim held under the earlier act. The position, before pnd after the later act came into force, was practically unaltered. To come to a conclusion as to the intention of the Legislature, he submitted the court would conclude that before 1898 what they had was that iv cases of certain failures of a Holder to carry out his duties a person wishing the land could go to the warden and apply for forfeiture, and the warden could decree auch or impose a fine, and in more serious cases could declare that the license should come to an end ipso facto. They had then, therefore, forfeiture subject to suit and absolute forfeiture by operation of law, and by the statute of 1898 counsel submitted the same state of affairs was arrived at, and the 1898 section was merely a qualification of what was the law previously. Counsel argued" the legal aspects of the case at length, and submitted that the Legislature had said as plainly as it could in respect to these mining privileges that if the rent was unpaid for 12 months the privilege came to an end. Mr Cutten also argued the legal aspect of the case and the bearings of the act, ancT submitted that the Scandinavian Company had taken the proper proceedings. His Honor reserved his decision, and the ; court rose at 4.15.