SUPREME COURT

Colonist, Volume XII, Issue 1174, 25 December 1868, Page 3

SUPREME COURT

SITTINGS Jlf BANCO. On Friday last, JTis Honor ifr. Justice IJ.ichmp.nd delivored the following important judgmpn.fc;— T.:is 19 an appoal under " The Waste Lands Board* Appeal Act, 1867,'" from a decision of the Waste Lands Board of the Province of Marlboroujrh. The Appcllnnt has applied under the 88th section of '-The Marlborough Waste Lands Act, 1867," to exchange a pastoral license issued to him on Ist January, 1856, for a lease, under the Act, of the land assumed to be included in the licence.

The Board has refused to grant to the Appellant a lease of the whole of the land to which he conceives himself entitled under the license, and of this refusal the Appellant complains.

Tho Board and the Appellant having been unable to agree upon a case, this Court has thereupon heard tho appeal under section 5 of "Tho Waste Lands Boards Appeal Act, 1867," and has received evidence partly oral and partly by affidavit. It appears that the boundaries of the Appellant'a run, as described in his license are as follows, viz: — Northward, by the River Clarence; Eastward, by the f' i'; Southward,' by a line extending from" the sea in jlf-Mfjon %y'tq flip base $f Mount Tapuaenuku j cstward, by" jfpunt Tapuaenuku. The decision qomplained qf i? iii the fqrm of a resolution qf the Board, ?•' That the boundaries of Mr. M'Rae's run as givpn in his license are tpo indefinite to admit of the Board altering the limits of the licensp granted to Mr. William .Robinson by the Commissioner qf Crown Lwida; and tho Board recommend that in the lease to be issued to Mr, Mfßao the southern boundary (shall be deemed to be a line from Half-Moon Bay in transit with the peak of Tapuaenuku until it reaches the boundary of the Jam Run; thence, on tlxp. Western side by the Jam Run." In one of the Appellant's affidavits he avers that the effect of this resolution, is, as he believes, to c»t

■off the greatest part"of"lris .southern boinidary, as 1 described in his lice-use ; to make the nearest point c;f. his run more than six miles from Mount Tapuaenukiv' and to reduce the area of-his run by upwards of 9000 acres ; and he claims to have included in his lease the whole of the land comprised in the license- granted to Mr. William Robinson, which is known .as the Jam Run. The license for the Jam Run is of later dnte thanthe Appellant's license, having been issued on 13th. September, 18G2. The boundaries are described by reference to a plan drawn on (ho license. There is, also, a verbal description of the boundaries j but this being merely explanatory of the phn is pin inly subordinate to it. The plan pretends to fix the eastern boundary of the Jam Run and the western boundary of the Appellant's run in a lino running nearly due south from the confluence of the Clarence and Dee, for somewhat more than six miles, being the whole length of tbe eastern side of the Jam Run. How such a boundary of the Appellant's, run was arrived at, it is impossible to conjecture. It has reference to no point named in the Appellant's licnnse. Yet if the Appellant's license be void for uncertainty, the ! later license may be valid. The question, then, is whether the Appellant's boundary i?, or is not, sufficiently defined by his license. If sufficiently defined, the rights of the Appellant cannot have been affected by the issue of a license of later date than his own, by which; it has bren pretended to cut off a part of his country ; nor can his boundary as lessee, under the new act, be fixed by reference to the boundary given by that license of later date. The Appellant's difficulty arises on the definition of his boundary southward and westward, the princi-. pal question being, what is meant by a line extending from the sea in Half Moon Bay to the base of . Mount Tapuaeriuku ? " The evidence as to the localities, is somewhat meagre, but from the oral evidence affidavits and pluns, the Court has been enabled to make out with sufficient clearness (lie few well known topographical details which seem to be necessary for the decision of the case. It appears that the River Clarence in the lower part, of its course runs bet ween the great mountain ridges, known as the Inland and Seaward Kaikouras. The highest poak of the inland Kuikoura is known as Tiipuaeivuku, and close to it are two other elevated peaks of the earno range called, respectively, Mount Alarm and Mount Gladstone. .These three peaks ore described as being not isolated mountains, but merely the most elevated portions of a continuous ridge, which sends down lateral spurs to the Clarence The bottom of the huge trough formed by the inland and seaward Kaikouras, may be regarded as the base of either range. But it appears lo bo impossible to assign a distinct base to the several peaks of the inland Kuikourn. The bottom of the valley, or rather gorge, of the Clarence may be considered as defining in this direction tha base of the whole .mountain mass; but the Plaintiff's witness, Mr. Western, ri»htly, as I think, declined to say that any particular portion of the valley could be regarded the base of the peak of Tapuaenuku. By Mount Tapuaenuku the license must, it sepms, mean one of three things, either (1) The peak of that name; or (2) Some indefinite portion of the range of the inland Kaikoura, of which Tapuaenuku is the highest and most prominent peak ;or (8) Tho whole range of the inland Kaikoura. As this mountain is given as the western boundary of the whole run, it would appear that it must have been intended thereby to designate either the whole range, or a considerable part of it. However, I find it unnecessary to determine exactly what is meant by Mount Tapuaenuku. If the peak of that name is meant, the evidence shows it to be impossible to define its base. If the whole ra?igo is meant, or some portion of the whole range, still it lias not been attempted on the part of the appellant to define what is meant hy the base of the mountain. No doubt the bed of the Clarence sufficiently defines it as regard distance from the crest of the mountain ; but, as regards extent up and down the valley of the river, it has not been attempted to define it. It is consistent with the evidence that what is referred to by the license as the base of Tapuaenuku may extend, at least, from the confluence of the Muzzlo to that of the Dee, q, distance exceeding ten miles in a straight line., Then, what is meant by a line extending from HalfMoon Bay, to the base of Mount Tapuaenuku? No difficulty has been raised, and I shall assume that none arises, as to the terminus of the line in Half Moon Bay. But a straight line drawn from tho bay to the confluence of tho Muzzle would, for anything that appears, answer the definition. So also would a straight line drawn from the bay to the junotion of the Dee. Yet the angular distance between these points, measured from tho South-eastern terminus of the line considerably exceeds 30 degrees, and the difference of area occasioned by talcing tho ono line or the other as a boundary would bo, I suppose, between 40,000 or 50,000 acres. The Appellant seeks to get over this difficulty by asserting that a line drawn from Half-Moon Bay to the base of Tapuaenuku means a line drawn thence [ to the base of tho mountain in transit with the high- ! est peak; i. c., in popular phraseology, in the direction of the highest peak. The plaintiff's witness, who is a duly-qualified land surveyor, has given his opinion as an expert that this is the true meaning of the ' license. In my opinion, however, this is not a question on which the evidence of experts can ho received. The terms to be interpreted are not terms of art, but ordinary English. Such terms are to be interpreted by the Court, and I hold that a lino drawn from a given point to the base of a mountain ' does not, necessarily, qr primarily, mean a line drawn in the direction of the summit. It is a vague ex? pression by which those whp use it may in some cases mean such a line as the Appellant contends for ; but which is susceptible of; and may practically be pniployed in, other senses. Sometimes, for- in? stance, it may be most reasonable tp suppose that a line drawn to the base means a line drawn to. the nearest point of the base. Standing unexplained, tl}e expression dpes not, in my opinion, sufficiently indicate any particular line. The termini of every line must be points, and the base of a mountain is not a point. The Appellant in the present case must be a sufferer from the vague terms in which his license is expressed. As I cannot declare that he is entitled to the boundary which he claims, the appeal must be dismissed. There is a preliminary difficulty in the way of this appeal which was adverted tp by the Appellant's counsel, Mr. Connolly, but on which, the Court having disposed oif the appeal pn its mprits, it is unnecessary to give an opinion. Few tho guidance qf persons who may on any future occasion desire to appeal from the deoisions of the Marlboraugh Waste Lands Board, I shall, however, briefly refer to the question. An appeal from the deoisions of this Board is givon not only by the general act intituled, " The Waste Lands Boards Act, 1867," but also by I " The Marlborough Waste Lands Act, 1867." This [ latter act absolutely requires that the appeal shall be jon a Case stated or settled by the Board ; and no ' provision is made for the refusal of the Board to state or settle a Case. As the Marlborough Act receivedthe Governor's assent on the same day as the general act, it would seem that their respective provisions are to be construed together, as if contained in ono and the same Act. The Bth section of the General Act onacts that its provisions shall apply to the Waste Lands Board of or in any Province, notwithstanding that in tho Waste Lands Act of the Province different provisions may be made for appeals from the Board. . This enactment may have been intended io control the provisions of the HJTarlborough Act. But this does not appear.; ' and the two Xcta, being contemporaneous, aro of equal validity. At tlie Sparing it seemed' to me possible to construe the provisions of section 5 of " The Waste Lands Board ■ Appeal Act" as superadded to thosp of the. Sill, section of the Marlborough Act; but on further reflection I am by no. means satisfied upon this point. The one Act sa.ys that the appeal shall be on a Case stated or settled by the Board, the other that the Board and Appellant shall agiee o,n a case, and that failing such agreement evidence shall bo taken by tins Court, These provisions seom to be repugnant, and it is by no means clear whioh ought to prevail. It is to be hoped that on any future appeal the Board will obviate the diffloulty by stating a Case.' Apian I or plans should ibrm pwt of every case involving a ,

.Sudden- DEAf?- oj^■jv.-^oW'XSitfAsr.r-.We ifegrcfc td . jstate (hat'Mr.'Clilirles'B'ray, senior,'."who was" an blrt resident in this-Province, and wasy.much '.and deservedly respected, died suddenly on Monday evening last. Mr. Brny and his wife retired to rest'at nn d.-irly liour on Monday- night, .and soon after Mr. Bray complained of a slight pain in the region of his heart, to which it seems that ho had lately been subject at intervals, and which he thought was caused bj indigestion. His wife then recommended, him to change his position, and whilst he was in the act of doing so, ho fell senseless, on the floor, breathed heavily once or twice, and'then expired. An inquest was held on Wednesday, at the Wakatu Hotel, when the Jury returned a verdict of "Died of-disease of tho heart." - • :

Serious Accident.—An accident occurred on Monday morning to Mr. Frank Bolton^ whilst; riding a half-broken Arab, tho property of his grandfather, Mr. Redwood, of Stafford Place. Mr. Bolton had hardly mounted the animal when he was thrown with great violence on the paved court-yard at th,e back of the mansion, causing, it is feared, some internal injury. A medical gentleman from Nelson was at once sent for, and we believe the patient is progressing favorably.

Fire at Waimea West.—On Tuesday morning' last, at an early hour, Aldourie, Waimea West, tile residence of Mr. J. Mackay (Tertius) was, we are sorry to state, entirely destroyed by fire, together with all the furniture and effects. Mr. and Mrs. Mflckay were aroused from their sleep by the roaring of the flames, and had scarcely time to escape from the house by the bedroom, window. The origin of the fire is at present "unknown. The insurance effected on the premises and furniture amounted to ■£550. The Lenton Japanese Trottpe.—Unfortunately "from the fact that the Odd-Fellows' Hall was engaged by the Brotherhood on Wednesday night, the only night this troupe staid in town, there was no performance given as advertised. The company, which numbers about twenty-two performers, is spoken of by the press of the Southern provinces as exhibiting a degree of talent of the most extraordinary kind, far surpassing any other performances qf a like nature that has ever appeared in the Colony. As it happens, the public will not have the opportunity of witnessing it, for the troupe were only passing through, and are likely to leave Auek and for Europe. Child Drowned at Takaka.—On Friday, December 11, the sou of Mr. W. J. Cobb, of Takaka, abort 15 months old, fell into a creek and was drowned.' ■ There is no doubt the little fellow, in trying to proceed over n, rough bridge to whore his .father was working, fell off the bridge and wasdrowned. Although life was' not quite extinct when he was taken out of the water, he died very soon after. The New G-OLimEr.D in OiAGO.-^-We {New Zealand Sun) arc permitted to publish tho following letter, which has b?cn written to Mr. Warden Pyke, by Mr. William Green, of Ta-panui, and a copy of which has been sent by Mr. Pyke to the Government : —" I went prospecting for a payable goldfield where we could fetch a wa'er-racc. I found tho field, and took out the necessary license. -Our race is situated upon Mr. Ainsley's run, on the Waikaka, near the Pomohaka. Wo have a. license for 16 heads of water. The ground is upon tho south boundary of Mr. Amsley's run, by west; thence across td Mr. Logan's run, down to Mr. M'lntyrc's run, and tho whole of Mr. M'Nabb's run. I believe there is at least five miles square of payable ground here upon those runs. The whole of the ground, is new, except ! some few gullies, which have been cradled. ■ 1 was prospecting the torrace for six weeks, and. everyone that I tried containod payable gold, with water upon them. We have some first-class ground. We have ground below our race which w rill not be worked out for twenty yews, al; hough 100 men were employed at it every week. We are about'twenty miles from Switzers. I believe this will bo a good and long goldfield. The Motaura runs at the foot of M'Nabb's run ; and I believe it can be lifted on to the terraces. Some of the gold is fine, some scaly, and some nice shotty gold. The depth of ground varies from 20ft. to 40ft. A little fine gold all through the dirt, from the grass roots." ■ '•_' Thk Smallpox on tub s.s. Kaikouea.—The Wellington Independent of Den. 22, says :--" The arrival of the s.s. Kaikoura from Panama with two cuses.of small-pox on board caused no little slir and excitement, not altogether unaccompanied with alarm, as it was the first time anything of the kind had occurred since the foundation of the Colony. Some years ago that part of the harbor situate between Dr. Featherston's house and Kai Warra had been proclaimed a quarantine ground, but no Board of Health had been appointed. Enrry yesterday morning a meeting was held, when tho following officers and gentlemen were appointed by his Ho-.ior the Superintendent members of the board. The Resident Magistrate of the port, J. C. Crawford, Esq., chairman ; the principal officer of Customs, James Hackworth, Esq.; the Health Olficpr of the port, Captain Halliday, Harbor-muster; Dr. Johnston and Dr. Giaco, Medical Practitioners j and A. de B. Brandon and W. Seed, Esq.*,, Justices of the Peace. The Board having beon duly constituted the following clause was read :—' 114. It shall be lawful for the Superintendent, upon the recommendation of the Board of Health, to appoint any station or place within any port or harbor for the performance of quarantine, when all vessels liable to quarantine, and the crews, passengers, and other persons on board thereof shall perform tho same, and blso, if necessar-y to. appoint lazarets and other places where the crews, passengers, and other persons, and the goods, wares,-and merchandise which shall or may be on board the said vessels shall and may be detained, landed, and kept for the performance of quarantine. Provided that any quarantine ground or lazaret, heretofore legally appointed by the Governor or by any Superintendent, shall be deemed to have been appointed under these regulations.' Agreeably with this clause it was resolved that Soames' Island should be the place appointed for the landing of passengers, goods, waivs, and merchandise, or any vessel anchored oft" that ialaud, and that a proper supply of tents, provisions, &c. should be forwarded thither. The Health Officer went alongside the vessel and reported that there were two cases of emiill-pox on board, and that there were twenty-nine passengers for New Zealand ports, who were all well. He directed, that, the the two persons infected shoqld be removed, to the City of Nelson, eoalhujk, co,re having been taken to first remove all persons, with their luggage on board that hulk to th,e. shore. Mr. Bishop/ the Managing Director, qffered, on the part at the N.Z.S.N. Company, the ijs« of the 3,9. Ladybird for- the purpose of taking passengers with their baggage to Soaines' Island and for their use while (here. It was also resolved that in order not to detain the Kaikoura that the mails should be placed on board the Panama Company's conl-hulk European, care having been taken to first fumigate the mail bags and boxes, and to remove the parties in charge of the hulk with their baggage on to the shore. No person to visit the Kaikoura under pain of being compelled to remain in her or bo shipped with the passengers to Soames1 Island. In short every precaution has been taken to prevent, any communication between the inleetod vessel and the shore, and there is every reason to hope that the scourge of small-pox will not be intro-; duoed into Wellington." The coaching plant of Cobb and Co., has passed into the hands of Messrs. Young and Shepherd, late of Hokitika, who have taken the contract for the conveyance of the mails from Wellington to Wanganui and intermediate places. They commence on the first of - the year. ' ■ ' Shocking Occurrence.—The Melbourne Age-of Dec: 9th, says:—" A very said affair is reported by the Mount Alexander Mail. A farmer ar^di ids wife^ being in the neigh oorbood of Montmorency, (Victoria), ha,d gone out to walk in a distant field, on Friday last, leaving some dinner -on the hearth, and a fc&by >?• &, cradle near the, fireplace, both in charge of their little daughter of seven years of age. By some mischance the latter became enveloped in flames, and when the tmhappy farmer and his wife returned they found their baby burned to a cinder. They then turned their attention to find the little 'girl, whom they blamed far the misfortune, .Poor Marie, however, disappeared, and for same time was nowhere to be found. At length, in.a pond in the middle of the orchard they found the body of their elder child. When she saw her little brother burnt, the broken- ; hearted child must have run out and, drowned, herself,,'!. ..