SUPREME COURT.-IN BANCO.

Thames Advertiser, Volume VII, Issue 1887, 10 August 1874, Page 3

SUPREME COURT.-IN BANCO.

(Before Sir 0. A. AKNEY, Chief Justice) EIORDAN V. Tokatea Gr.Ji.O.— la this appeal case his Honor delivered judgment as follows on Friday:— This is an appeal from a decision of the Warden's Court of the Hauraki Gold Mining District, rejecting a claim of the appellant holding a miner's right, to be let into possession of a piece of land in the occupation of the respondents, a claim based on the ground that the respondents, although duly registered as, holders of a lease for gold mining purposes and possessed of a leaseholder's miner's right under the Act of 1869, in respect thereof, do not possess a miner's right, in accordance with the provisions of the Goldfields Act, 1866. The machine site is situated outside the land the subject of the lease, and the question raised upon this appeal is, whether the Warden was wrong in deciding that it was necessary for the respondents, holders of a lease for gold mining purposes, to hold a separate miner's right in addition to their leaseholder's miner's riglit in order to entitle themselves to obtain and occupy this machine site witbia the goldfield. 1 he discussion of this question necessarily led the Dourfc to consider what are the powers and privileges which the holder of an ordinary.; miner's right is entitled to enjoy p aud the argument of the appellant's counsel asseried two propositions, viz.: First, that the holder of a miner's right who had already taken up the full extent of one man's ground cannot h >ld a machine site in addition or as accessory thereto, witliout first taking out an additional miner's right; and secondly, that, if he can, at all events the leasaboldcr cannot hold the machine site in addition to his leased land, for that he is not a " miner " at all, nor is his miner's right a " miner's right" at all within the meaning of section 6, of the Act of 1866. It may be well therefore to inquire wnat is the position of the holder of an ordinary miner's right in this respect; because, if he, having taken up his ground to the full extent, may hold a machine site as an adjunct or accessory thereto, and without taking out an additional miner's right, it would seem to be the more probable, as argued by the respondent's counsel, that the Legislature intended the holder of a leaseholder's miner's right to enjoy the like privilege. The miner can occupy only so much land, as is prescribed by the regulations. He canonly so occupy " except as against her Majesty." _ He acquires no water right, nor any right to enter a mine, or to occupy, except as expressly provided, viz,, subject to the provisions of the Act, and to the regulations to be made as therein provided. Accordingly, powers are given to the. Governor in Council to make regulations, viz.: By section 2, regulations of a miscellaneous character, including among others, regulations for deierinuiing tin; area, boundaries, form, and position ot auy claims or class of claims; for prescribing the manner in which,'and subject to what rights and obligations, any kqh claim or class/of claims, or atiy of

the water rights mentioned in section 6, shall be taken possession of, held occupied, used, worked, assigned or forfeited, and for regulating the use of machinery; and further, by sub-section 14 the Go<-er-nor in Council may make all such other regulations relating to mining, and to the enjoyment, occupation, and use of Crown lauds within the gold field, and of any Water thereon, as the Governor may deem beneficial. Special conditions are next prescribed by the Act it<elf, relating to water races ovr private lands, viz, under section 21 and its 12 sub-sections; and lastly, these •are followed by the sleeping p>wergiven to'the Governor in Council under section 107, to make regulations in all cases not already sufficiently provided, for facilitating ana more effectually carrying into execution the objects of the Act. Under these extensive powers the regulations of 18-58 were made, and the same scheme of regulations, which limi's the areas of the various classes of claims which may be occupied by the holler of a miner's right, inclules also refill iiions in farour of the same hold-rs. for the ohtaming and occupation of special sites for machines. The whole tenor of the regulations themselves show that their fraroers did not contemplate the granting of machino sites over lands which would be "taken up," as the phrase is, as part of a " claim" under a miner's right. Thus the site cannot be obtained without special application to the Warden in writing, accompa ied by full particulars aud a deposit of £5, as a security on the cost of survey, &c. The survey and surveyor's report must follow thereupon, notices must be posted, a period of 14 days must intervene, and not till then can the Warden issue his special certificate for the registration of this special site. Then the site cannot at last be granted, if known to be auriferous, unless worked out and abandoned; in other words, unless it be upon land which no holder of a miner's right would be likely to take up at all. Instead of the regulations being jultra ]vires, because not supported by that sec tion, perhaps it would be nearer the truth to say that the practical application of section 6 is by the Legislature/itself limited by, and made dependent upon, the regulations. At all events, it appears to me that the specUl machine site granted under the regulations may be granted and held as an adjunct and aoces ory to the quartz claim, and that if those regulations are ultravires, they must, after this lapse of time, during which they appear to have been acted upon as law, be declared void by the of Vppeal. For I gather from the Warden's judgmsnfc. and understood it to be not denied upon the argument before me, that this construction of the regu lations has been received and acted upon by the Warden's Courts in dealing with olaimholders under" the miner's right." 'hough land held under a gold mining lease is not a "claim" within the interpretation clause of the Act of 1866, this machine site may be an " authomed holding, right, and privilege," and, therefore, in its widest sense, a " claim " within the interpretation to the regulations of 1868. If so, it oannot' be taken possession uf (regulation 9) without consent ■ of the owner or authority of the Warden; ami the Warden, before he granted leave to a stranger to take possession of the 8 im*, would hold himself bound by the regula tions under wiiich t.h- mic'iin* site vm granted. To vuci that the machine site is not an ''authorised hdli.ig," ix merely to assume that witch has to be proved or disproved, \gain, perhaps the erm "instrument of title " is scarcely more descriptive of the ordinary miner's right than it >s of the leiseholder's miner's right; but if it be more so, the question still rem .ins whether a machine »ite held by toe h >1 ler of an ordinary miner's right, plut m one man's ground, is held unt"r nis miner's right at all. And if it may be held as an accessory to his claim or holding of o u> man's ground, there is nothing unreasonable (in the absence of so oe stttutory prohibition to the contrary) insupoosiMij that the leas 'holder who holds a > aggregate of miners' rights, proporti i.-m'.e to the area covered by his lease, may be entitled to the same privilege w ich the regulations accord t> the more irm i • I occupation. By section 10 of the u-t if 1869 the le-iseholler's miner's right I. only in respect of the laud -cue auriferous land—comprised in ih« leaw; 'anct the area of that land is defiied by sac tion 29 of the Act of 1°,06. United, p it seems to be, independently altogivher of any land, not auriferous, which my be comprised in any grant of a machine site. Or, assuming that the leaseholder's miner's right is not required to emorace the machine site, must the leaseholder take out an ordinary miner's right to qualify himself for accepting a lease of a machine site under section 29 of the Act of 1866? That Act is stent upon this head; and if the law be, as qu >ted by counsel for the appellant, that Ihe applicant for a gold miutng lease under section 29 does not require, especially if prior to the passing of the Act of 1869 he did not require a miner's right to support his application for a lease of auriferous land, it does not readily appear why he should have required, or why he should now require, the like qualification to support his application under the same clause ot the same section for a lease of a machine site. If, lastly, the losses of a machine site under section 29 requires no miner's rigot of any kind to support his occupation of siijh site, one of two inferences seemingly must foilo-v, viz., either the has failed to carry out its presumed intention, of pi icing by the Act of 1869, the leaaeholiT and the claimholder on an equal looting as regards their obligation to take out minors' rights proportionately to the area of the ground which miy res actively ooupy on the goldhM.l; or it has evidenced its intention tuat neither lea«eholder nor claimholder should be compelled to hold &uy additional miner's right in order to qualify tiiem<elven respectively to apply for aud occupy a machine site as accessory to their respective holdings. The position in this respeot of a lessee of a machine site under section 29 of the Act of 1866, was not discussed before me, but it was argued for the respondents that the Legislature, when passi.g the Act of 1869, must have had iu view the regulations of 1868, made, as they were made, to carry out the Act of 1866, whicn is incorporated win. the Act of 1869; and so the Legislature must be presumed to have intended to place the leaseholder with the leaseholder s miner's right upon a fooling of equality with the claimholder and his ordinary miner's right, • admitting them both to enjoy up m eq t .il term* tho same privileges as accessory to their respective Holdings uj oi the goldfield; and further, that this intentim might bd gaiherod both from the w nd ingot'the >ct of 1869, and from the g.-uc- [ ral policy of the goldfields legislation. | The Warden adopts this view of the case. e I think tho aots aud regulations are sus* ceptible of tho interpretation which lie

plhobs upon them; aul tna* me ture, in passing the Act of 1839, may be taken to have intended that the holder of a Jobholder's miner's, and the holder of miner'srightnotbeingaleaseholder.should be admitted upon equal terms to enjoy the same privileges and easements to facilitate the working and development of the goldfields. That the subjeot is beset with doubt and perplexity must be admitted; but I am not prepared to say that the Warden has formed a wrong judgment upon the complaint hefore him. ■■■' flii* appeal mu«t therefore, in accordance 'iih the terms nf the special Cis ■, be dis-rnts-ii'd wi'h co-h