MINING APPEAL.

Otago Witness, Issue 2884, 30 June 1909, Page 29

MINING APPEAL.

WARDEN EVANS'S DECISION IN QUESTION, His Honor Mr , Justice. Williams on the 23r3 Jbeard a case of 'some in mining; circles^ It was an appeal from a decision by .Warden' Evans, given on April -19, by whi'cK 18 acres in the Leaning Rock district, belonging;,, to the Manorburn Sluic,ing v Coupany, wre.HJeclared, «b&ndonod a by the* issue of a certificate, and the, applies-, tion by James Rivers, of Alexandra, for a lease over of the claim bednsf granted. Mr W. C. MacGregor appeared for the appellants (the company), a-n-d Mr R. Gilkison for respondent (James Riyers). Mr "MaeGregor said the point shortly was. should not the warden have "fined nather then have declared the claim abandoned. There Wae an application by Mr Rivers for. a claim of eonte 18 acres, which .he had picked out and applied for in due form of law. That claim was, speaking broadly, portion of a.n existing claim of 100 acres, at present held by the Manorburn Company. Mr Rivera's application came before Warden Evans in April last, and was dealt with by the warden, who granted a certificate of abandonment, and granted _th*» claim M.r "Rivers t had applied for. The Manofburn Company was c**~ satisfied with that ruling-, and accordingly appealed to the court by way of a rehearing. The sections of the act relating to t.he matter were 185 and the following sections. ' The warden appeared to have acted on what eeemed the traditional policy, of wardens, and misdirected himself on, a point of law on this subject. Until recent years there were two methods by which one mining party could get itself legally possessed -of a claim that wa« nominally- in the ocevmation of another party. Section 190 of the act of 1905 com•otately revere-ed the old law, and it became the primary duty of tlra warden to "ray ■whether or not he should fine. N^verthelea? a g.reat many wardens had had firmly fixed in / their mind^ what was known a* the traditional -noliov .of wardtens, an 'l acted upon it. Som« years a ceo; in 1903, several gentlemen in Dunedin forrosd thenv selves into a syn-diicate j».nd took up f*evernJ epecial claims in th« Leaning Reck di<? trict. and amongs* the?^ wns section 51 which "tow generally referred to s8 Norman's claim. Tber-3 w«rp foii.r r-laims th3i had ever 6ines been hpJd, more or le;a *>v- these por&dns. The *svr<dK*ate tool +hese up wath" the intention of working +-hem. and ftpe-nt a larc* atrount of mon*". ■m prospect! n/.^ The difficulty wis to pped w&i«r to woi-k tlveee claims, and, wi+h « view to obtaining it. th°- svndio-utf nisg-otiat-ed with the "Ronanza Coramnv. bul was unsuccessful. The Bonanza Com.pam sold its \rater rights to tko Government and tlv° Government, decided to sell the WBt.si\ The syndicate- then commenced i< 'uifc" if« sluices for bringing ' fh*» watei iivlo the upwr claims, and matters re ■'"•a.inerl in this condition for P<\m«» time Tpwarfo the .end of 1907 the rvwij t...t«»t ...t«» com mencrd to cu l " its raoss. \aJ<<l r"own ? ■nip^ li^ 0 . and ronarip-rjcerl sl"icip,=r fh< npT>e.» > ciai"}. Then th«> boKrV* int^vcned, Arsd it recoro»r i .anc o -'' sluinina; v ."hire. I°OR. A few days afterward: tb< "vater failed, and i+ stoniyd s'uicing The br>^nr-h race at t.h<- t.im" •*-■** c->n strncted to the Wr . olai*". Whs" tlv "vAt-er was r-ut off tKa paiV /->f tli" men. and york sinmr- c?< oo < v v' nnfjl th •»"•>„+•,» r n.^,3 neain ai«>il« vu ' I'%1 ' % I* 1 Febi-"-»vv "•9OB. the old ground h«M b" the wSe suT'^-n'dered.. ar"* in Jim", to^ o . t 1 " nr°sPnt Manorhur" Corri^inr w.i~ for-*"'*' ■^Acra! ivew member* be:n? tstkon int< th£ comr-^Tiv. \pWch" took "ov~r" +h n ns^'t of the old Rvndneate. and . f^-e^b Jir^riv; gra-n+««3 in r^^i^ct o f th*- c c claim? Six months were pJlowed by th~ ?r> v.hioh to enmm^noe- work, ibis -^x ■nired nn t.b.T 8^ n^c-?™V<v 1908. At th■•■iiTio of thfl for +hi» new grourii Messrs H^wH^.n and Moncrieff ncciw>s«<l : nur<oer^ at +b tt mouth r> f fJ "^ r •orbu-" nrtrl obi<»ot-of' tD tho grjirJinv n f th« a.m>li cation on thp cround that thp wovkin•would floor! *nd ininre t.h^ir orchard an< trult tre€6. Tc-a wa.rd.en visited the ground

* and only granted the a^olioation because ' the- Government undertook to form a weir or dam in the neighbourhood of this orchard to protect Messrs Howden and Mcnorieff and other settlers. Messrs Howden and Moncrieff intimated to the present company thait if it started sluicing before the weir was completed they would apply for an injunction. The weir was oiny.™ completed in February of the present year. In the beginning of March, when tho weir \vas completed, the Manobuxn ■ Compaay intended to commence work straight way, and ksu-ad fr-esh shares to the public, but this was stoppad by Mr Hivexs pegging- out this strip of la>»d, which was the key to the whole 100 acres. That, of course, stopped any question of getting i any further capital, and the result, of course, wa6 that the company had to cease ■ operations, and the application came on for hearing in April, ard tihe magistrate came .- to the conclusion that he ought to declare ; the ground abandoned. It was submitted, ' on these facts, that there was no real t reason for holding the view fchat the ground should be declared abandoned and : . that tihe matter could be dealt with by a fine. Over £2000 had been expended, "and if would be a hardship if this certificate . was allowed to continue. "Mr MacGregor then called evidence. Mr'Gilkison submitted that the decision of the warden' must bs upheld. The warden i had carefully reviewed all the facts placed before him. Tk>3 warden was " a eceeial officer.' a special tribunal, with epacial facilities, and special . mining knowledge. No proper explanation had baen given as to why the men stopped work. He would prove that the alleged failure of water could not have bsen the reason. According to section 97 of the Mining Act, and regulation 60, dealing with the number of' workmen to be employed by the holder of a claim, this ■ company ,for -their 100acres should have employed 16 men. &n«7 for all the land 'held by the company, 33 men. The court had the facts that, al- . though the company held 211 acres, they ! employed only six men altogether, which j was wholly out of .proportion. At the j last moment it would eee-m that the com- ] pany had been frightened into doing eomej thing. This was a deathbed repentance \ which should he of no avail to it. ; Mr MacGregor (interjecting) : I thought. '■ that -was the right place to I'epent. j Continuing, Mr Gilkiscn said he failed , to see how a threat or an injunction ' should bo considered in th« licht of accident. Howdian and Mohcrieff had no riparian rights, and fcheir -alleged interference was surely an excuse for not working. _As a matter- of fact, the- company had not spent a single penny on this ground. There ■\vas no plant. His learned friend's objections were fully provided for by the act. It was its business if it held a claim, to find out what the law required. He j would point out that, apart from speoiaJ circttmstancos.'a fine" should only be impo-ed if there had been" a. lapse, and if ne^'eet hod., been followed u,p by diligent 'work. , ■ Evidence was called to .show that the i race had bean used and no objections ; raised ; that in i^rovious. years the ground had '.not -been • injured by tailings; :that the 100-acre claim, known as" Norman's." ; could ? be worked by stacking the tailinigs i .arid- lett-in-T ihe m-&mm -&m etuff ,jro down the • stream. Nothing* would find its way down ;to the Nursery. Even in the case of the ! floods the tailings, if stacked, would i*emain-. Mr Gilkison, summing up, said that the rasp was stronger here than it had been in the" lower court. Mr MacGrogor urged that, there * were two questions to be ideewl-erl by the court : Were th<; facts of constructive abandonment proved? and. if so, whether it was to be met. by c fine cr 'not. In spite of Mr Gilkieon's contention to the contrary, there could be no doubt, whatever that the law in this resnsct had been very materially altered, and'WJ"* now much more in favour of the oaim-holde-r than it had been before. This fact must hay bean borne in mind by thie warden. I-t was ol«ar that the only case wherein a warden was bound to j oftrtify wa« in tho case of a second offence. j If the water supply ha^l «?one on, the coraj pnnv would have gone on working its claim. *nd there was no doubt that i+ would, have continued the fona L ruction of the branch rnco. It was nerfectlv obvions that thero had b?.en a atraitsninc: financiaMy, i but this had Wvm got over oikl {.be money j liad actually been " Dut ur> " by the *M-reritoi-s for tlie workinar of the claim. The difficulty caused by lark of outlet hod al-o been overcome, and the rent had Keen naid* "n and anDarently accepted by the Mines Department. His Honor : I -don't sxrnnop.e_ the official had a minute of the order of abandonment. Mr MacGiY>gov D^inted out that the official who nad signed the rfce'nt. knew a jfi-pat d.eal -about minincf. He submitted t.'^at tho wpipdcn had tak'ftn an erroreous. and. with' all due* rcsnect to him. _a somewhat narrow viow of the r a<?r>. His Honor must he satisfied ihat, if ihe pronert'- vas not he'd to ba abandoned work wclH lie resumed j He wnuld suggest that a light fin>2 should j be Jnfl)< n +fH. His Honor reserved his decision.