The Evening Star. PUBLISHED DAILY AT FOUR P.M. Resurrexi. SATURDAY, SEPTEMBER 2, 1882.

Thames Star, Volume XIII, Issue 4266, 2 September 1882, Page 2

The Evening Star. PUBLISHED DAILY AT FOUR P.M. Resurrexi. SATURDAY, SEPTEMBER 2, 1882.

The action in the Warden's Court, on Thursday—Wheel of Fortune Company v. Tairua Gem Company—was very complicated, and we hate endeavored to render it clear, as follows:—The Wheel of Fortune Co. in November, 1881, applied for a license under the Gold Mining Districts Act, 1873, and with the applica* tion lodged the usual plan, but which did mot shew the connections with known points. The license w%s, therefore, not granted to the Wheel of Fortune Co. till 13th July, 1882, after all defects in the plan had been rectified. From the evidence, however, it appeared that the northern peg had not been put in until the 6'h of July, that is, a week before the license was granted. It was during the interval between Nov. 1881 and July 1882, namely, on Ist March, 1882, that the Gem Co., through their promoter (Mr John Featon), pegged out an ordinary claim called " Gem No. 1," and there and then set men to work upon it, and worked constantly till the issue of the summons in the action. When the correct survey for the Wheel of Fortune Co.'s license was lodged in the Warden's office, it was then found out by defendants that their claim. (Gem No. 1) encroached consider* ably, on the Wheel of Fortune Co.'s license, at the northern end, where the latter company had not placed their peg till July. The defendant's contention was that the plaintiffs' license not having been completely pegged at the lime of applica* tion, it was not a claim, and the Warden could not grant a license for it, and that the license produced by plaintiffs, dated 13th. July, 1882, was void as against defendants' claim, Gem No. 1, which was

pegged in March, three months pre> vioosly. The plaintiffs contention was that the- license having been issued to them gare them, in the words of the Act, an indefeasible title, and eren if there had been no. pegs in the ground at all, they still bad a good title against all comers, including prior claimholders. The question, which is a very important one, had every appesrance of being settled one way or the other in this case, but, unfortunately, defendants' title to their claim suddenly gave way* for it turned out that the Gem No. 1 was marked out while the Around stood as a registered claim in Mrs Daykin's name, and before she had abandoned it. That being so, defendants had no title whatever to set np, and therefore could only be trespassers, although defendants' counsel (Mr Russell) contended strongly that he was still entitled to inquire into how plaintiffs obtained their/license, and if he could shew that it was got either by fraud or mistake, then the defendants would not be trespassers. The Warden ruled that although he was not quite clear whether, on the application of a person appearing to have a prior right, he ought to go behind and inquire into a license already issued—yet he was quite certain that he could not do so in an action against persons who had no prior rights, and were* therefore, trespassers, as in this case; and he must, therefore, hold that the plaintiffs had a good and valid title under the license, and order the defendants to remove. With a view to rendering the matter still clearer, if possible, let us put it in other words. The Wheel of Fortune people wished to stop the Gem folk from taking out quartz in their license, believing that they had no right whatever to do so. The question arose, Is a license a title so thoroughly complete that it cannot be upset by any means whatever. Mr Miller contended that it was so, whilst Mr Russell argued that no rightful owners should be barred from pressing their claim; therefore if someone were deprived of his rights through a license being obtained by another person who was not the owner of the property by means of fraud, or through inadvertence, accident, or some other reasonable cause, the license might be set aside, and the property delivered up to the proper owner. Any title obtained by fraud, he stated, could be cancelled. The question of indefeasibility of title unfortunately, was not settled by the Court, inasmuch as the case was decided upon another point; the Warden, however, was inclined to think that the license was indefeasible unless obtained by fraud. Now as to how the Wheel defeated the Gem. A license clearly cannot be granted over the heads of the holders of a claim, but it was shown that the Gem No. 1 claim, on which the defendants rested their case was invalid, for it had pegged in portion of somebody else's claim, Mrs Daykin's. If therefore the Gem claim had not a good title to their ground, clearly one in working in the mine occupied, bat as it turned out, improperly, by them was not encroaching on their rights, for the simple reason that they had no rights to be encroached on. Counsel for the Gem wanted to go further and attack the title of the Wheel, but Mr Kenrick slopped him by saying, " Whether the Wheel's title is good or bad has nothing to do with you, for one thing is clear, you have no right to the ground. "-""'' " ,