IMPORTANT MINING CASE. Cornes V. McCombie: Silverton Claim, Waihi.

Te Aroha News, Volume III, Issue 125, 24 October 1885, Page 7

IMPORTANT MINING CASE. Comes Y. McCombie : Silverton Claim, Waihi.

Ik aid Supreme Court, Auckland, in Ban4<f t on Wednesday last, before His Hon^r Air Justice Gillies. Ci A. Cornea v. John McOombie. — Thislwas an appeal from the decision of the 'Warden of the Thames goldfields. iJyr E; Hesketh appeared for the appellant, and Mr A. E. Whitaker for the respondent. Mr Hesketh opened the appellant's case^ The appellant, Comes, had laid a _jcomplaint_. , against McCombie, in which he sought to obtain an order from the- Warden to. take possession of a Wtain section of land in Wailii for mining purposes. A case was stated for the appeal. I f set forth that on the 29th of August the complainant caused a plaint to be laid against John McCombie. $% recover possession of said ground, whic ( h the defendant had taken possession of, and which he claimed to have regged. out as a claim, but which he did not peg out .by having erected pegs not !«»*m than thrpe inches square or threo iuctu's in diameter. The complainant jrraTed that the lirfen^anb be adjudged to have no title. On tiie lltii of Septeinftrr (lie case wts heard before War den Kenriek. It was mbv'ittc I that de fondant wa<s in possession, that he had marked out the laud as n claim on the 12th of August as the Silverton claim, im<J given in tice to the Mining Registrar, and applied fot a license, but he did not mark out such land by pe§s three inches square, or three inches in diameter, two of the pegs being less than three inches square. The claimant therefore applied for an order to be put in possession, and claimed that he was entitled to such order. the defence it was stated that the Warden was not obliged to give the plaintiff- possession, as the defendant Was in possession. The Warden gave judgment that the defendant had marked ou^t t|ie claim and endeavoured to procure it license, but it was a.lmitteJ that two of the pegs with which the claim wa« ma deed were smaller than the required and the plaintiff taking advantage/bf this technical defacf, sought to obtain possession of the ground. But j thegjjsfendant, as the holder of a miner's ' right, Ifail the right to lie upon the Jand for exp)dration purposes, and was therefore legally there, although he had no legal title to the. land, not having marked it in the manner prescribed by the Ac 1 ., but h^j(the /Warden) held that he •hould,-be, allowed" to make his title good, and h^ re fused the order, as the defentlant vfras in legal occupation, and the complainant was ordered to pay costs, £9. jp&cflfaßiiana for tl c Court were : WasJ^^eejsjpnlgpodjn law, and wa« the cbmplamant entitled to an order? Hesketh was proceeding to argue the case on the grounds that the pegging otf&iyaß insufficient, when His Honor aivid the first question was whether the Warden was right in stating that these pegsVere'iiisufficient ? Were these pegs not three inches in diameter 7 Diameter did not^arjpjj^only to^ circles. The objecFot the law was for the purpose of clearly marking the boundaries, pegs of certain dimensions were to be erected. Here were pegs each containing a greater surface than three \»y three .inches, one of those complained of cont lining 10 >

inches, and the ether 9*ol G25 inohes of surface. ; It seemed to him that the Act was complied with, a-lthougii one of the posts might be .alf au inch le>* than thrt'e incl.es in one measurement. Mr Hesketh said he hope- 1 His Honor woald not lay that down as law. It was understood amongst the .mining community that the pegs inr.st be three inches, and if half an inch wns allowed, why not an inch ? Tiie title was only given to the exclusive possession of land for mining purposes when it was marked out in a particular manner. He quoted the case Thompson v. Lamb and other.', and quoted a judgment by Mr Justice Molesworth to show that the Warden shouM have given the order to the plaintiff to take possession of the land as the defendant was not in legal occupation. His Honor said there was no use i ihouring that part, of the question unrii ue saiisije.l him qm the tirsl point. There was a substantial compliance with the Act, the pegs l>eing of a crreitpr surface ilum Bxl To aim it appeared to be v-»ry sharp practice on the part of the appellant. Air Heskofch said ife might appear s->, but the Warden did not hint at that. He should, of course, l<«a\e the point with His Honor, l>tn would ask that, in any case the appellant should not be saddled with f.he co«sts of appeal. Mr \\ hitaker »ai<l thnt the Court had ruled that the pegging out was sufficient, thai the icpoiulcnt hud conip ie<l with tie Act, and that he was, then* fore, entitle-! to co>ts, and the Wanl'Mi, who hud all the facts before him, thought fit the mulct the appellant in costs in the Court below. His Honor dismissed the appeal on ;he ground that t ! ione was a substantial sompliance with the Act. (Joats wtrc aliowed, but the amount vns not fixed.