Application for Abandonment

Waihi Daily Telegraph, Volume IV, Issue 1206, 21 December 1904, Page 3

Application for Abandonment

Important Jut'pii.ii

!W thii Warden's Court this morning Mr Warden Bush gave judgment in t!ifc.i:;c in which F. Mcl.oughlin applied for a section which it was alleged hod boon nbandonod. Tno application was opposed by Mrs J. B. Robertson. The following is the full text of the judgment :

This is an application for an alleged abandoned residoncosite. ttesidonco sites am granted under section 118 of the Mining Act,lß9B, for Ihe purpose sot out in sub-section 2 of that section, viz, " To reside thereon, and uso and cultivate tho sarao as a home," and tho liconso form under which such sites aro hold provides amongst other things—"tmd subject further to tho forms, comliotious, reservations, and powers sot out in tho aforesaid Act and tho regulations thoreundor." Tho ai'9 two mothoiis by whioh cit.es to abandoned mining privileges can be acqaircJ, either by foifsituro or abandonment, at tho option of tho person taking proceedings—section 147, SuVsoction 2 provides that a businoss or rosidenco site shall ho liable to forfeiture if r such site is entirely unused for its proper purpo'.s, or unoccupied, or m-giccted for any continuous period of tlirco months, and section 10l statos under what circumstances mining privileges shall bo deemed to bo abandoned by operation of law. Subnotion 4 of this section especially donls v/Mi businoss and rosidenco aims, and wiii'W that if sweh site is outiroly unused for in; propor purpose, or uiioccupiod or neg'ecied for any continnpiia parted of six mon h?, it shall bo deemed to bo abnnionod. '.kb-scction 5 of-«eciioti 105 provides that a decrco of forfeiture may bo mado notwithstanding that tho eyidcuco establishes abandonment by operation of law. Other sections make provisions for obtaining a dicreo of forfeiture or a certificate of abandonment. Section 157 provide for certain contingencies which, when established, will relieve from both Ibrfoiiuro aud abandonment, but neither of Iheso occurrences have taken pl'.ce in this instance to help the present owner out of the dillicuhy. So soon as the site with which we are dealing is proved to tho satisfaction of tho Warden to be in tho condition described by sect" tion 4of section 151, it is doomed lo bo abandoned by operation ol law, and tl>s Warden having no discretion must certify tint Mich abandonment Iris been "Siabiishcd. It amis inionded that the proceedings should have been by pi-.in'ifi lor fnr[,:i;nre, but it w II bo seen from tho sections referred to that the Act. allows to parties iho option ot proceeding in such a case m this, either hy forfeiture or abandonine,-., and tho Court has no rig'-1 I) dicato wife': procedure fhall b': ink-ii, The fitts in this particular case -.is.-'n-i- that this section has been Ir.ld tud.•>■ ;or ono year and n-lialf—h-tit" of th.it tini'i by <t proyious owner, and the odancc by the present one, It would seem that this section, while held by tho first owner, was open to bo applied for as an abandoned section, and the present holder has not dono anything to secure the section against such mi implicit:ion since becoming tho owner, bociiuso all that was claimed to havo been dono to it during the last nine months was the pulling up of sumo titree scrub, the plantiug of tho tow ornamental ireet', and the digging of a small drain. The section was reviewed when it was discovers! that one or more of tt-c trees wore mil on tho section, nor was tho drain. There was no fonce. It was stated that timber for building a dwelling upon it was being procured in small lots, and that it was mlendcdio commoner to build with a vio-.v to using tho section for a home, but it transpired that tho section had been in tho hands ol tho local laud agents to sell, but as l!m price offotcd was £lO no sale was affected, as JE2O was required. From these facts it may fairly be concluded that since tho grant ibis "cetiou has been held for speculative pnrposos, nml has never been used for its prop'r purpose. Consequently I liavo no option bin, to declare it übitn* doncd by operation of law, and grant it to ihe applicant,