INTERESTING MINING JUDGMENT.

Otago Witness, Issue 2812, 5 February 1908, Page 28

INTERESTING MINING JUDGMENT.

In the case of Low v. Ewa.rt, heard before Mr M'Ennis, warden, at Middlemarch, and argued before Mr Cruickshank, -warden, at Dunedin, Mr F. G. Duncan being for the appellant Ewart, and MrW. F. Inder for the objector Low. Judgment has been given as follows: — This is a very interesting case, as the point is a novel one. The facts show that Ewart I held a prospecting license for a year, from December 4, 1906, granted by the warden at Middlemarch for an area of 20 acres. This license confers the right to prospect for god and other metals and minerals. From the time of the grant until about the middle cf February, 1907, Ewart prospected the ground, sunk four shafts, and took" out ljQwt of s'heelite. No report was made to the warden of this discovery, but he sent samples to the Mines Department, and obtained an analysis from them of the sheelite ore. The piece of land comprised in the license lies between Lawrence and MiddJeI march, and on the 10th June, 1907, Low obtained a prospecting license over 100 swea ]of the same ground (including Ewart' s 20 acres) from the warden at Lawrence. There ■were thus two titles in existence for the same piece, of ground, granted by diffaient wardens. On the 22nd October Ewart | applied for a special claim over his piece of land, and Low, hearing of his fellow ( occupier, objected to Ewart's application for this special claim, which was made to the warden at Middlemarch. The hearing of this application and. objection came on before the warden at Middlemarch, who, after hearing evidence on the point, decided that the Lawrence Court was the nearest by practicable route to the land in question, and he sent the papers on to the warden at Lawrence for adjudication. All the above facts I being admitted, I heard counsel on the law points involved. As Ewart was claiming the priority which i-s given "by a prospecting license, Low's counsel contended that ! this prospecting license was void on several grounds. The first ground was that Ewai-t's prospecting license was void because it was obtained from the warden at Middlemarch, and. it has since been judicially decided that Lawrence is the nearest court. Section 165 a is certainly mandatory if read by itself, but the rigour of it is modified by the proviso. This provides that the warden may either treat the application -as if duly filed or send it on to tb.e right court. A» vhe warden granted the application, it seem.3 to me thai he must be deemed to have treated the application as duly* filed. I hold, therefore, that the prospecting license held by Ewart is a perfectly valid license, although -issued from the Middlemarch Court instead of from the Lawrence Court. The next objection raised by Low was that Ewart had failed to observe the conditions of his license. Section 74 enjoane vigorous and continuous prospecting operations to the sa+rsfaction of the warden, and the prompt repprting to him of all -mineral discoveries. I -think this condition has been carried out in the spirit, if not in the letter. Enough shafts were sunk and some sheelite was taken out to prove that the ground waß worth exploiting in. » larger way, and the finding of the mineral was reported to the Mines Department in Wellington, and assays obtained. Once c piece of ground is proved in a bona fide way there is no need to continue the prospecting operations. The breach of condition in any case would only render ihe license voidable, and not absolutely void. I hold, therefore, that the prospecting license cannot be assailed on this ground. Low's counsel further contends tfawt sien if tne prospecting license Is valid and effective Ewart should have applied for a mineral license and not for a special claim. He says that 'under the special claim Ewart will have the right to mine for gold only, and not for slieeuto; that Bhee-lite is the only mineral or metal bo far obtained from the land, and sheelite is "the only* thing both parties expect to find there. He contends that the grant of a -special claim to Ewart will be useless, as ne cannot get gold there, and his occupation of the land under his lioense will block others who want the sheelite from getting it out. Section 97 shows that a claimholder has no rignt to mine or remove any -metal ox mineral except gold, and he has also exclusive occupation of the claim fox mining purposes. The point is this: Should -the warden in the general administration and good government of the goldfields grant a special claim under these circumstances? Probably not if the evidence were strong. But I have endeavoured to follow the notes of -the warden at Middlemarch, and I fail to see anything to chow ms that gold may not be found in this land, notwithstanding the presence of sheelrte, and the assertion of Low's counsel that both parties are only looking for Bheelite is not borne out by the evidence. I cannot get over the faot that Ewart has the priority, and under ordinary circumstances saould have tne special claim given to him, as he has complied with the law. It is not my bußineaß to refuse him the license because I believe tnete is no payable gold there. I might have to refuse a ftumber of grants if I took that uppn myself. The warden Bhouid. do his best to prevent the sh.epherd.ng or any dog-in-the-manger business, to encourage the Bpeedy freedevelopment oi the goldfiela, ana, should. -3Q I

what "he can io put ah end to anything tikoTjf to* cause future litigation. But there must! bs a strong case made out to enable the warden to pass over the first applicant. 14 comes to this, that Low claims that thd warden must give him the ground because) Low 'thinks it is purely a sheelite mine, instead jf giving it tq a prior applicant who asks to be allowed to mine for gold on it. It is not suggested that Ewart is not financial and cannot work the olaim in a systematic! way. I see no reason why the law should not take its course, ana the claim be granted. 1 would like to point out that the latter ground of objection is not set oat in th« formal objection fi'ed m the proceedings. The application will be granted. As to the costs, Low succeeded in convincing the warden at. Middlemarch that Lawrence was the nearer court, but, as at the same time Ewart' had obtained a prospecting license at Middlemarch, he might justly think his application! for a special claim should be also made there. I think eaoh party should pay their awn costs al! through.