A WAIKAIA MINING CASE

Otago Witness, Issue 2727, 20 June 1906, Page 24

A WAIKAIA MINING CASE

AN APPEAL FROM THE WARDEN'S DECISION.

At the District Court, Gore,, on Wednesday last, before District Judge Ha-selden. the case of Gordon' v. Hamer .was argued. This uras a case on appeal from the decision of Mr Warden Cruickshank in the mining case, Hamor v. Gordon, recently heard. Mr Payne appeared for the appellant, and Mr Bowler for the respondent. His Honor said that he had read the papers in the case, and asked if both parties were agreed as to the facts. Mr Payne sad that were not agreed. The warden had found that there was not a peg at one disputed place, while he contended that there was. When the parties visited the ground they failed to go to the spot wher the p-ag was. His Honor said that the proper course would be to re-hear the case. Mr Payne said that they were not agreed been taken by Hamer to the proper pegging of the, ground before the hearing by the warden. Counsel detailed the history of thp case from the usual application for the claim, and said that there would be two points — one as ro pegging and the | other as to survey. Th-ere was no intention lon the part of Gordon to abandon the ! ground, and the original peg* were never i touched. He cited clauses 79 and 80 of the act of 1895 as showing that the court could ! fix the boundary of the claim. Gordon ; woiild give evidence that he had gone round each angle of the claim and pegged it. After the ground had been surveyed. Hamer had objected on the ground that Gordon had tak^n in more ground than he had pegged. The peg H in dispute had been f,een by several people — one had seen :t on tho morning- the judgment harl be?n delivered, and one saw it since. If the peg H had twH>n left out his client would have been entitled to succeed. Counsel then went on to deal with cases bearing upon proper pegging. There had only been one objection lodged by Hamer, and that wiu> after the day of preliminary hearine. It wa_3 owing to delay on the part of the Survey Department that Hamer had ■ Leen enabled to lodge his objection. • Peter Gordon gave evidence on the wmc , lines a= in the rase before tho warden. ' Before he snarked out the new claim there was a peg on tli£ old claim at F ion th<» plan rl rhe new claim), and there wa, also on" at H. When he marked out rh<» new claim ho put in a new peg at F. and one a f P. ?- near as possible to where he believed the angle to be. He put trenches ai F and H. . Mr Bowler cross-examined witnes* at length as to the pegging of the claim I Mr Payne raised the objection that Hamer could not go into the quest'on of pegging 1 , but hi 3 Honor said he would hear the evidence. The warden had said that the pegs were correct with the ecception of one. Mr Bowler contended that, as the case { was being Teheard, he had the right to go into the question of pegging. Cross-examination continued : There were ] two pegs at the point in dispute, but they were about 10 yards apart. m f J. W. Johnston, surveyor, was examined ; as to the survey of the claim. Gordon ("•' 'uned in a s^neral way the boundaries ' of the claim. Ho had surveyed the old claim, which was co-terminus with the new < one. He explained the manner in which i the claim had been pegged and surveyed, and said the reason he had taken in the < extra piece of land was that it was waste, ; and he thought it would benefit the claim. i Mr Bowelr cross-examined, with the, intention, of showing that the estra viece pf I

> land had been taken for the purpose of • blocking Hamer's prospecting license, but . the witness denied this. i Mr Bowler said that section 238 of the 1 Mining Act of 1905 cured ajay defect there was in the objection before the court. The objection, aro^e out of the original pegging and surveying. The applicant had relied upon his pegging of the old claim where it joined the new one as sufficient for his new application. Again, no survey had been before the court within the prescribed time and manner. The plan was not in accordance with t-bo original application. This could not, be rectified now as tho time had elapsed. Fredk. Hamer described his examination of the ground to find the pegs marking Gordon's application. -He had not succeeded iv finding them all. Witness was examined at considerable length, and described the position of s'.^ch pegs as he had found. A regolfttiou peg had been put in at trig L since the appeal. Cross-examined: When witness went round the boundaries with the warden there was no peg at trig L. He had demanded that Gordon should show him the pegs. His . demand was not in writing. Had not objected because he had to consult others. After Gordon's application witness pegged out a prospecting- claim. There were no survey pegs G and E>.' Had taken pegs; which were " planted " ready for repegging and thrown them away. Chow Joe (who was sworn by blowing out a match, and whose oxide-nee was interpreted by Yung Chung) said- he recognised the rammer produced as his own. He had seen it sticking in the ground about two chains from his hut. He had seen other pegs, about 3in x 3in, near the j others pbout three months ago. E. E. Collins, called by Mr Bowler, was examined at length regarding the pegs he had found when he visited the claim o» September 18, 1905. The trenches beside the peg? on the boundary between the old and new claims had not recently beon ; dug, and wero not regulation ones. He I notioetl alterations in the pegging and j trenches on various occasions on which he visited the claim after that date. Had last visited tho claim on Sunday last, when other alterations had been made. He noticed that the survey had been made in November. Some of the survey pess were j old. Visited the ground on May 2 : j noticed one of the pegs (the rammer) had | been removed. | Cross-examined : Had been on the erround I before he went with Mr Hamer. and found the pegs at D. B. and A (on the plan). There was a pep near Doinfc H, but inside on the new claim. Took this to be the orig-inal pegging of the old claim. There was a survey peg at point H. At the peg inside the claim there were scratches, but not trenches. Frank Lee said he had been on the ground, and had seen the rammer peg, which was similar to that in court. Had seen a. small survey peg at F. At or near H had seen a claim peg. Joseph Rogers clerk of the court, said he had visited the grounds with the warden in October. Mr Hamer wanted the warden to go and see point H, across the gully, but Mr Tnder said it was not necessary, as he had pegged that when pegging the old claim. He heard Mr Gordon say that he had tapped that peg. The rammer pe^ was admitted io be there. At point F there was a good elaun peg with trenches. Cross-examined: Would not contradict Mr Gordon if he said that Mr Hamer had j asked wh*»re the sixth peg was. Had heard 1 Gordon draw Harness attention to the peg j across the gully. James Hamer, under cross-examination, said that there was an old survey peg at the point H. Between 30 and 50 yards from point H there was a regulatoin peg. Tranche* were marfo at the survey peg; and also at the regulation peg. Mr Payne said the cause of appeal was as to whether there was a peg at point Hon the map. All the witnesses were agreed that there were two pegs near H. Tie submitted that even if his friend could call evidence that the pegs were not regulation pegs he must fail, as he had to prove that there were no pegs. Hi* Honor said that, as the warden had visited the ground, and was satisfied there was not- a peer at H. lie would not alt^r (liar without the clearest evidence. He would not give judgment that day. and thought Mr Pavne should examine his wit-nf-sses so that he would have all the cviJeiice possible to truide him. Francis Browne said he remembered the duv on which the new claim was pegged out. Two days afterwards witnesa went over the claim with Mr Gordon, t^here was a proper peg at point B, and there ' were proper trenches. He described the peps found. At H there was a survey peg and trenches, and a regulation peg near it. He described the rammer, which had been nseu 33 a pep. Ft was about 4in through j for upwards of 2ft of its length. The ram- I raer produced -was not the one used as a peg by Mr Gordon. Remembered meeting Hampr on the claim some time in September. Hamer said it wa« not properly neeged. Witness sueerested that Hamer had the privilege of objecting. Remembered the conversation l^tw^pn Hamer and ttorflon rearardinsr tlio sixth peg when tlie warden wa3 inspecting the claim. Mr Gordon ♦ old the warden he had nut in new pegs. Ha 1 gone round the claim with Rawlins when rhe pe?3 were in the ; r places and the trenches in order The only exception was that angle where the rammer had bc^n used. Crn^ examined ■ Had **on the rammer two tiavs afc»r th«» pegging. H3d pegged the old claim of flordon and party. Had put a peg near the point H when pegeing out that claim. The peff which was 15 or 20 vanls from point H was not a peg of the old oLaim. The trenclunsr there was not that of the old e'aim, either. Damol Russell deposed that h-e had gone round tl-e claim about fiv^ <lays afte^ it had tvM>n p'^ged out by Gordon. Had t-on the ianirr><?'\ which was use^l as a peg. It was not the nmiwr produced in court. Had swn the pcg 1 , at H from a. distance. C. C. Rawlins. mining engineer, had been over the claim in dispute on the 6th March, on the morning before the warden gave judgment. Described the pegs and trenches he had seen. Had found a surveyor's peg at the point H and a. claim peg 10 yard* away. Gordon obtained a Bpade and dug a seotion of the earth out where the rammer in court had stood, disclosing a hole large enough for a stake sin in circumference. Peter Gordon (recalled) said he had got a spade and proved to Mr Rawlins that a larger peg had been in the erround at the upot. The rammer was not bis peg. Cross-examined: Had got the rammer from near a Chinaman.' & hut. Had not been

round the ground to repeg it since tEI first marking. Had not ragged out grounq .in consequence of what the warden- haa said. The rammer peg he had used had been in ite place till the last time he visited it, when he found the .one produced! in« court. He would swear;'the rammer produced was not the one he xiub in &s a. peg. Mr Bowler said the survey had not beert properly made and placed before tho court," 'inasmuch as it included more land than that applied for by Gordon. T?ie» survey had been made with Mr Gordoh'a consent and under his direction, and Jneiuded about 150 \ards more land on each ride than was in the application. While the warden cou'cl overlook a slight difference, in this case the area, was too great. If his Honor returned . this case to <ih«. warden, that officer must dismiss it, as tile time for rectifying the survey had expired". The application vas -void, and the court could not deal with it. As to the pegging, the evidence .showed that Mr Gordon had setTt&e regulations at naugTit. There was ample evidence that the rammer produced in court, had been used, 1 and ho deprecated in strong language the attempt to show tha& a - suitable pog had been removed and replaced with the rammer in court. It had been shown that there wa* not » peg at point H. The evidence was that the only regulation peg near that point was one used to mark the original claim of Gordon and party. Every angle of a. claim «hould be pegged, and the angle at H had not been pegged. He submitted that tho warden was the best judge of the facts, as the parties came before him fresh, and tad not had tiino to compare notos.

i Mr Payne said tho onus, rested upon thei objectors to prove that ihr claim ha-1 liot been properly pegged. Sinner's objection wa» not in time. Ho had been in couri; at the preliminary hearing-, and had not objected till November 20. The presumption from this was that he had been sztis- ! fted with the pegging whon he first Tk'ited {■■ho claim on September 10. If the cours surveyor had made an error the court would strain a point to a.; low him to set it rijfht. All the witnesses agreed that there ' were pegs at or near H. His Honor would require very strong evidence "<hat the regulation peg near point H was not the one which Gordon swore he had put in when jigging out the c<?w daisc Hi 3 learners i friend had only brought negative evidence i as regarded the proper pe^gini?. while ho ! had ample positive evidence that the pegj ging had been properly carried out. His Honor said he would consider his decision, and send a coi»v of it to each of the counsel engaged.— Ensign.