NICOLSON v SCANDIANAVIAN WATER RACE CO

Otago Witness, Issue 2924, 30 March 1910, Page 28

NICOLSON v SCANDIANAVIAN WATER RACE CO

In the Supreme Court in. Banco on February 22 and 23 Mr Justice Williams heard the case of "Nicolson v. the Scandinavian Water-race Co. This was an appeal by way of re-hearing from the decision of the warden at St.- Bathans dismissing the application of Mrs Nicolson for a claim of one acre within the boundaries of the company Mr A. S.- Adams, with Mr Davey (of Naseby), appeared for the appellant. Sabina Margaret. Nicolsojh, wife of Neil Nicolson, of St. Bathans, miner, Mr W. 'C- MacGregbr, with Mr Gilkison. for the respondent, the Scandinavian Water-race Company. " . . ■'■ The full text of his Honor's judgment in the case. is. as follows: This is an appear on matter of both fact and law from the refusal of the warden to grant a mining claim to the appellant. By section,34o of "The Mining Act, 1908." such an appeal is to be by way of. a re-hearine' of the original proceedings in like manner as if the proceedings had been pronerly and duly commenced in this court. _ This court, therefore, is now placed in the; like position as the warden in the court below, and is invested with the like powers. By section 165. subsection (m). the warden may of his own motion and without notice take any objection he thinks fit, and shall not grant the application if he is satisfied that any objection thereto exists". By sub-section (-/> the apnlication mav be cranted or refused by the warden at his discretion. By subsection 2 of section 336 the ris-ht of appeal ffiven by the act is not to be in any way limited or affected by the fact that the decision, formine- the subiect matter' of the appeal is declared bv the .-.act to be within the discretion of the warden.-<' Anarfe therefore, from the question as tyo whether the obiectoi" below can raise .fresh : objections here. this.court can act-upon the evidence properlv before it. and can refuse to grant the application if it considers -that lookins - at the whole of the circumstances it ouffht not to be granted. The applicant in the present case is Mrs

Nicolson, the wife of Mr Neil Nicolson, who was for-14-years the manager of the respondent company, but who had bean dismissed from the service of the comapny on the 27th March, 1909. The application is for a claim of one acre, formerly held by one Patrick Hanrahan. The respondent company has a claim of 17 acres 3 roods, and this one acre is surrounded on all sides by the claim of the company. This acre had not been worked by Hanrahan for many years, and it had been wrongly . supposed by the directors of the respondent company to form part/of the company's claim. According to Mr M'Connochie, the chairman of directors of the company, the company had worked part of the surface of the acre for years. Mr Nicolson, however, was aware that the acre was held by Hanrahan. ?>i'ot long before Mr Nicolson was dismissed from the service of the company he had a. conversation with Mr M'Connochie on the subject of the acre. Mr Nicolson mentioned the fact of the acre being Hanrahan's, and the" buying of it by the company was suggested. Mr M'Connochie says that Mr Nicolson undertook to buy it for the company. Mr Nicolson says that Mr M'Connoohie said that he would arrange to get it from Hanrahan. In any case, it was not bought, and on the 27th Ma,rch Mr Nicolson was dismissed from the service of. the company, and received one month's salary in lieu of notice. The grounds of dismissal as set out in the chairman's letter to Mr Nicolson were his intemperance and the dissatisfaction, of the directors with hismanagement. • Then early in April Mr Nicolson pegged out the acre on behalt ot his wife, and an application was made to the warden- in the name of Mrs Nicolson for a certificate of abandonment of Hanrahan's claim. Mr Nicolson says, Mrs Nicolson made an application to the court in connection with the acre. Had a conversation with M'Connochie after that--! think early in April. He attacked me for pegging out the acre. - He-had a, .mortgage on 5000 shares I held in the company. He threatened to sell them if the pegs were not withdrawn. I said: 'lf the company wants the claim the times for dealing with me are over No doubt if you approach Mrs Nicolson she may not be hard, on you. Thd company to have been represented at the hearing, of the application ) for the .^}§f** e A <* abandonment. The the application, holding that dure was to sue-for a forfeiture:- Then a suit for forfeiture, was commenced by Mrs Nelson against Hanrahan. The company was not called upon to appear when the suit for forfeiture was was it represents at the hearing. The warden made a decree of forfeiture, And; Mrs Nicolson was declared the first applicant. Then Mrs Nicolson applied to the'warden for the claim To this application >SJtba. company lodged objections, and the application refused. The maiu objection, and .tl he one upon which, there can -he no doubt tha, .he warden based his decision, was; that to* result of granting the claim, to Mrs Nicolson would be to. seriously hamper the company in its future operation,, .warden inspected the ground .besides: hearing the witnesses, and I see no reasonrjto diltei from the concluson that if a license mi the acre were granted to Mrs Nicolson, or to anyone else, the future ? eperations of the comnanv.would be hampered.in a ,vay in which they would not have been hampered if the acre had been unoccupied Crown land*. Although,; however .he acre had beon practically /abandoned by Hanrahan, the title still remained in h<.m until the decree of- forfeiture, and he hadi rights over it which the company could not have disregarded. The;effect of the decree ; of forfeiture was to divest Hanrahan of these rights, to make the acre ©:>ert :for aoplication, and to give to Mrs Nicolson the rieht to apply first, .for it. The right Mr Nicolson had was simply to hava her application -for the acre considered before an application for it by anyone else was considered. When Mrs Nicolson .s application came on the acre, by virtue of ..he forfeitures had become Crown land open for application, and Mrs -NioolsoiT" was uhe first and onlv applicant for it.' Sjrie was, in fact, in the same position as any'other applicant for a mining privilege..' =P.n Crown land. I think in considering.an application for a rninina' privilege on/Crown land it is competent for the look at all the circumstances and. if it appears tha,!; the granting of the privilege wiU. . hamper the" operations of. a ; 'mjmn>. privilege alreadv granted, to refuse ..the application. In the present ca.se, however, there is a great deal more than that. .It/is. of course, impossible to dissociate 'Mrs Nicolson from Mr Nicolson in the matter. Mr Nicolson carried the business through, and the application must be treated as if it were his application.' Mr Nicolson h ad been for manv vears in the service of th© company, and during his period"' of service became awa.re that -Fanrahan^r'acre had become liable to forfeiture-through not, being worked. Mr Nicolson was. clisrnissed from the company's service, and had differences with the . oomipanv. Immediately on his dismissal he took steps for proceeding for abandonment and forfeiture to obtain this acre for his wife. Mr Nicolson was aware of the importance iihis. acre was to the companv not so much;because of its gold-bearing capacity as ir> -account"- of the embarrassment that wotdd . bA-caused to the companv if it were worked l hv anvone else. What the gold-bearing csnacit*: Of I 'tho acre is it is inioossible to tell. -Tlnß -however, shows that the--acre;:' has been. alreadv partially worked- in times osst. I should certainly conclude that,-'looking at the whole of- the "violence.- tfew■/aoplication was made more with a view of placing the company in a difficulty and benefitins - by that difficulty than of worikhig the claim to a profit. I think the case comes within the principle enunciated bv T.indlev Tj.J. in Txmis v, Smellie (73 L.T., 226):-" The 2'ood faith which exists between an employer and those in his - employ renders it improper and illesal for the persons so employed to make use. after the - termination - of the employment, of those matters which they learnt while they were in that, confidential relationship." Looking at thv whole of the circumstances. I am satisfied that it : would he improper to arrant the application. Appeal dismissed, with costs. ftote* from w aikaia. * (FjtpM Our Own C6aRESPoiji)ENT.) The Mvsterv ■ Flat ; d.redge..is working very steadily on poor ground/,.', The dredtjemaster expects the ground to change for the better very shortly. The Mastert-on dredge is on fair ground, and the machine is in very fair repair. The buckets have just been rebushed. so the dredge should run for some time with-

out any stoppage unless something un- * foreseen happens. The Muddy Creek No. 2...redge is etill ■working, and it is reported that the ground has improved this last week. She should "Soon get n to fair ground. . The Argyle dredge has stopped owing to a break in the crown wheel. Being" a water-power dredge they can utilise the ■water for sluicing until the new wheel arrives!' * The Bonnie Dundee is working steadily, but the returns are not made known, being owned by a private syndicate. They have had the rrisfoitune to bend their ladder, and have started io repair it. having already got it out on the bank. I v The Duke of Gordon dredge is still working under ,'ilr F. Browne, and it is reported she is doing very well. . The Waikaia South dredge is working steadily, but owing to the small returns expenses have been cut down to suoh an extent that it will take a lot of material to put her in first-class repair now they have got on a bit of good, ground The Muddy Creek Sluicing Company is in full swing again, and some good returns can be looked for now they have plenty jf water. The race has been put in good repair, and now the, wet season is on they should have a steady run for some time. - Gow's Creek Sluicing Company (late*. •Mutch Bros.) is working full, time under Mr J. Bradbury, late manager -of the Muddy Creek No. 2, who should give a good account of himself and make .this ■property "a splendid investment for the lucky purchasers.

NEW ALPINE MINE. (Fbom Our Own Cobbbspondent.) GREYMOUTH, March 25. Th« New Alpine mine manager's report lor the week ended March 22 says:—" A start was maxle .on Monday : morning to clean out the ;old cross-cut and alter the timber in No. 7.level, so as to* allow room to take the truck line into the fac6 of the cross-cut. I anticipate- the contract to commenca on the 24th >nst." COMPARATIVE DREDGING. -/ The following table shows the number of Otago and Sc -dand dredges at work weekly, with, their returns, together with , the figures for the corresponding periods of' 1909. 1908/ ai>d 1907.. Pennyweights and grains are omitted in each instance : 1910. 1909. : 1908. 1907.

",. -West Coast. New Trafalgar,'4 days ... ... 13 * 0 . The Ga*rston. : -correspondent of the Wakatinu Mail-says:—ln mining things are, if anything, slacker, due to the very dry weather of the summer. The great hydraulieking field in the Nokofnai has had several periods ©f idleness owing to short-' «ige of water, such as has never been known before. The shareholders have therefore I felt the pinch; ;and retrenchment in eetrain directions has been carried into effect. Instead of havingeseparate managers fpr the three claims-one?is appointed to manage No. 1 and 2 claims and one for No. ,3 claim. Mr W. a very old and faithful servant of, >:the company, has recently received the- first-named appointment, with g-eneral powers,over the whole concern. Mr Garratt is in charge of No. 3 claim.. As there has not been a wash-up for some.little time I cannot, say what the present prospects are. The shareholders undoubtedly possess a valuable property, and command a. srnod supplv of water, which is judiciously apnlied to the ground. . Four local residents who recently acquired richts in Digger's Croak have been at a great deal of exnense in erectiner a hydraulic plant. Thev hone to commence work shortly on a rie'v niece of ground adjacent to this old field. It is tf'G sincere wish of all that they roan the due reward of their labours. THE GOLDFN BED DREDGING COMPANY. g lE> —La, s t week I noticed a letter from " Shareholder" complaining that the dividends in this dredging company did not corresponds with the returns. 1,. had the same impression, and'called .on the secretary, Mr E.Trythali; ; who readily gave me all the information I wanted. If "Shareholder" would do the same he would probably get satisfaction. —I am, etc.. Another Shakeholder. > Invercaigill, March 24. DUNEDIN STOCK EXCHANGE. There has been but little alteration in the ■sfcte of the shaxs market during the week,

and if anything tlwre was a weakening.tendency in several stocks. Sales were chiefly confined to North Island stocks, and of the sales recorded about half were to outside buyers. After weakening Somewhat, W-aihis have steadied, and five sales were recorded during the woek -at .prices ranging, from £9 8s to £9 10s. The market closed with another buyer at £9 9s, and a seller at £9' lis. Waihi Grand Junctions have been quiet, sales ranging from £1 12s 7£d to £1 13s. Old Haurakis firmed a trifle from sales at 3s 7d to 3s 9d, which about represents their present market value. Talismans . have not been much sought after, and' there was only one sale recorded, the price being £2 lis, which represents buyers' latest estimate* of tbair value, sellers standing out for Is 6d more. Owing to the continued high state Molyneux River dredging stocks hava been neglected. Rise and Shines are notable exceptions, as these dredges are not affected to any extent by fluctuations in the river, and their returns are consistently good. Shares have beon inquired for during the past month or two, but holders were not anxious to sell. During the week, however, one parcel changed, hands at £2 ss, and constituted the only sale of dredging stocks. Investment stocks have been quiet, and the only sales recorded were Union Steams at £1 Us 9d and National Insurance shares at £1 8s 7£d. The Stock Exchange "i 3 at present closed until after the Easter holidays. The following are Thursday's latest quotations, subject to the usual brokerage : . Dredoing Stocks. Biaclcwater—Sailers ss. , . • Electric —Sellers 4s. Golden Bed—Buyers 18s 6d, sellers 19s 6d.

Hartley and Riley—Sellers £l. Masterton—Sellers £2. Mystery. Flat—Sellers £l. >■-, Rise and Shine—Sellers £2 2s. Mining Stocks. Muddy Terrace—Buyers £1 4s. Blackwater Mines—Buyers £1 9s, sellers £1 lis. • Ross Goldfields—Buyers 7s 9d. Consolidated' GoHfielda—Sellers £1 2s 3d. ICeop-It-Dark— Sellers 169. Progress Mines of New Zealand—Buyers 13s 3d. .-■'*"•• Kuranut Caledonian —Sellers Is Bd. New Zealand Crown —Buyers 4s 9d, sellers 5s Id. May Queen—Buyers 4s 2d, sellers 4s 6d. New Sylvia—Buyers 4s 6d, sellers 4s lid. Old Hauraki —Buyer's 3s 7d, sellers 3s lid. Talisman Consolidated —Buyers £2 lis, sellers £2 72s 6d. Waihi—Buyers £9 9s, sellers £9 lis. Waihi Extended—Buyers 3s, sellers 3s 6d. Waihi Grand Junction—Buyers £1 12s 6d, sellers £1 13s 6d. Waiotahi—Buyers 33 lOd, sellers 4s 6d. March 22.—01 d Hauraki. 3s 7d, 3s 7d, 3s 7d; Talisman, £2 lis; Waihi, £9 8s 9d; Waihi Grand Junction, £1 12s 6d. Reported Sales. —Rise and Shine, £2 ss; Waihi, £9 8s 9d; Old Hauraki, 3s B£d. March 23.—01 d Hauraki, 3s 9d, 3s 9d. Reported Sales.—Waihi, £9 10s; National Insurance, £1 8s 7sd. March 24.—Golden Bed, 19s. Reported Sale: Waihi Grand Junction, £1 13s. ■■

Oz. Oz. Oz. Oz. — - — 5--go. 3 69 3 59 ' 7 197 11 267 14 242 22 559 21 700 29 o797 28 -.955 32 791 23 621 28715 26 787 34 996 24 615 26 642 .24 683 29 798 22 589 26 663 31 . 930 33 833 19 589 25 637 26 689 34 1088 20 513* 27 •733 32 861 35 1020 21 625 33 822 30 973 37 1157 20 554 31« 806 28 885 31 788 19 422 24 ••■• 'S74 -29 973 28 748 21 549 t 31 948 26 993 26 658 5974 7694 10,231 8495 TSb West Coast. *— —' 3' 101 ;—-' - ■ — 2 43 2 47 3 m 2 208 8 331 1 24 3 102 3 182 8 303 5 167 6 247 6 294 8 262 3 58 4 91 4 122 6 222 5 133 6 145 3 154 6 262 5 131 5 "136 5 192 7 259 3 59 6 '180 4 144 6 269 5 98 '"■3 -89 5 144 6 233 5 119 ■X ri74 7 300 9 212 5 135 :i— ':.' — 7 302 8 245 5 135 P 164 8 191 8 253 1106 RREE 1530 2233 TJRJ IS. 2944 y )GING REI Oz. dwt. gr. Golden Bed, Miller's I'!:;!, 124hrs '..'. 54 0 Sandv PoiM, ' Alexandra, 118hre 28 16 0 Koputai. Waikaia, 109hrs 28 6 0 Otaso No. 2.,' *la.t>d Blook 23 0 0 Mastorton. W« ikaia. 114hrs 25 4~ 0 Pun*. C'«t.h.a'SSv^r. 99hr» PS 9 0 Golden Treasure. -'Miller's Flat 20 10 0 Waikaia. Waik<u3. 138hrs .. N 20 0 0 Mystery Flat. .Waik" fa; l?fl irs 18 2 0 Paterson'* = Freehold, Waikaka,'122hrs 17 10 0 South Waikaiji, Total' .VK Waikaia, wk :;.: ... 2 12 9 0 76 14 0